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« Pretext #18 | Main | Disparate impact #20 »

BFOQ #19
by Ross Runkel at LawMemo

BFOQ stands for Bona Fide Occupational Qualification.

A BFOQ can be a defense for an employer that has engaged in intentional discrimination. The burden is on the employer to prove a BFOQ, and it is a difficult burden.

Title VII and the Age Discrimination in Employment Act (ADEA) prohibit discrimination because of:

  • Race
  • Color
  • Religion
  • Sex
  • National origin
  • Age

The BFOQ defense is available only in cases of discrimination because of:

  • Religion
  • Sex
  • National origin
  • Age

As Title VII puts it: Discrimination is OK "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."

No BFOQ for race or color discrimination.

Examples:

  • State prison hires only men as guards in a jungle-atmosphere male-only prison.
  • French restaurant hires only French chefs. (It won't work when hiring janitors because it's not "reasonably necessary" to the authenticity of the restaurant.)
  • Airline requires pilots to retire at the age of 60. (Won't work for flight engineers because the government does not require it and the Airline could individually test the engineers to see which ones would be a high risk.)

Coming next: Disparate impact #20: Employment Law 101

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