The average U.S. worker believes that any type of discrimination in employment is illegal, when in reality this is not the case. In rare situations, it is possible to discriminate in hiring and employment if the characteristic in question is what the law calls bona fide occupational qualifications (BFOQ). This designation is seen in Title VII and the Age Discrimination in Employment Act (ADEA), but the concept can be found in other law even if not explicitly named.
If you believe you have been discriminated against in your job or in trying to find one, it may be that there was a legal justification for the company doing so.
Bona fide occupational qualifications are defined in Title VII, where it is stated that religion, sex/gender or national origin is an acceptable basis to discriminate on if doing so is “reasonably necessary to the normal operation” of the business in question. For example, it has been held in court cases that a religious school may discriminate in hiring faculty only of that particular religion, because hiring someone not versed in that tradition would detract from the overall mission of the institution. However, what is “reasonably necessary” is sometimes the subject of discussion and disagreements between circuits.
There are many different types of reasons that a BFOQ may be held to be legitimate, some of the most common among them being safety and privacy. However, for a BFOQ to be given credence, it cannot be based on stereotypes or general “feelings.” Statistical evidence or other objective statements are required.
For example, the court in the case of Everson v. Michigan Dept. of Corrections (2004) held that gender might be a privacy and safety based BFOQ because statistics regarding past incidences of abuse in the prison at issue. In Henry v. Milwaukee County (2008), however, the same BFOQ was held not to be valid because there had been no history of abuse or untoward behavior at the institution in question.
How To Identify A Bona Fide Occupational Qualification
If you believe you have been discriminated against on the basis of national origin, gender, or religion, it can be difficult to determine whether or not it is acceptable for the employer to do so. Generally, to claim that an act of discrimination is acceptable as a BFOQ, the employer must be able to show that (nearly) all the members of the excluded class could not perform the job in question. For example, gender is a BFOQ for a modeling house that only works with men’s clothing, as it can be argued that women would not be able to model men’s fashion as effectively as men would.
The line is arguably even thinner in dealing with the hiring process, such as in pre-employment questions. If a question is asked regarding any of the three categories, and it does not go immediately toward the question of whether the applicant can perform the job duties, it can be seen as a problem. For example, if someone asks about an applicant’s national origin merely based on looks, it will be problematic. But if they ask about national origin because the business in question deals with highly classified information, such a question goes toward whether the applicant is able to perform the job (whether or not they are a U.S. citizen or not).
Enlist An Experienced Attorney
If you have more questions about what constitutes a bona fide occupational qualification, contacting a knowledgeable employment discrimination attorney is a good step to take. Attorney A. Christopher Potts is happy to sit down with you and help answer your questions. To set up an appointment, contact our Charleston offices today.