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When Is Age A Bona Fide Occupational Qualification?

When discussing discrimination in the workplace, many people forget that age is a protected classification right along with race, religion, gender and nationality. The South Carolina Human Affairs Law and the federal Title VII both bar any kind of unequal treatment based on age. However, there are exceptions, and one of these is in dealing with characteristics referred to as bona fide occupational qualifications (BFOQs). If a job has a BFOQ, an employer is generally permitted to weed out applicants for a variety of reasons. It is still incumbent on them, however, to ensure that the issue actually is a BFOQ.

The ADEA & Title VII

Title VII of the Civil Rights Act of 1964 contains a provision against age discrimination, as well as against discrimination on the grounds of other characteristics like race, ethnic origin, and gender. The Age Discrimination in Employment Act (ADEA) was passed in 1967, and while many confuse the ADEA with Title VII, they actually work in tandem, with the ADEA clarifying and amending areas that Title VII left unclear, such as in dealing with employers on foreign soil that still use U.S. law. Both are still in force as of this writing, with both applying to private and local government actors, though federal agencies may have different antidiscrimination protocols.

There are subtle differences between the laws. As one might imagine, the ADEA focuses exclusively on age as a ground for discrimination, while Title VII covers a range of potential issues. Title VII also applies to employers with 15 or more full-time employees, while the ADEA applies to those with 20 or more. However, both laws do have BFOQ defenses, which can actually be helpful to an employee as well as an employer, because it states a reasonable definition of the term that can be pinned down.

Valid Reasons For BFOQs

A true bona fide occupational qualification is a characteristic or trait that must be present in order to qualify for a certain position. In other words, if a job has a BFOQ, that characteristic can be disallowed if it can be shown that the exclusion is “reasonably necessary to the normal operation of that particular business or enterprise.” For example, an airline may hold that age is a BFOQ: it is reasonable to assume that a pilot or air traffic controller of advanced age would be more prone to make errors that could cost money and lives.

That said, mere inconvenience does not rise to the recommended level for exclusion. If someone moves more slowly due to age, or needs things explained more than once, this does not mean that they are unqualified. It is also worth noting that the ADEA does permit an employer to favor older workers for certain jobs even if it disadvantages a worker under the age of 40. The rationale is that older workers may be able to better teach younger workers from positions of authority.

Seek Knowledgeable Legal Assistance

It can sometimes be difficult to distinguish between a legitimate BFOQ and an excuse for discrimination. If you need help answering that question, contacting a South Carolina employment discrimination lawyer can help. Attorney A. Christopher Potts and his Charleston firm are happy to assist. Contact our offices today to set up an initial appointment.


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