Age discrimination is prohibited in most employment contexts, but not all. Exceptions in the law do exist, for a variety of reasons. The most common among them is the bona fide occupational qualification (BFOQ) – a logical and practical reason why having a younger worker in a specific job makes sense. This does serve as a defense, if proven, against any claim of age discrimination.
Title VII vs. ADEA
The average layman tends to confuse Title VII’s provisions with the Age Discrimination in Employment Act (ADEA)’s, and accordingly, remain misinformed about which law actually protects them from discrimination based on age. The answer is an amalgamation of both laws – the ADEA extends a narrow exception permitting specific age-based regulations originally found in Title VII. Title VII states that an employer may discriminate on the basis of religion, sex or national origin in those instances where those factors might constitute a “bona fide occupational qualification reasonably necessary” to a business’s normal way of operating. The ADEA extends this permission to age.
In other words, an employer may discriminate if they can show that the characteristic in question – religion, sex, national origin or age – would positively or negatively affect an employee’s performance, rather than just being a personal preference or dislike. A common example is that of an air traffic controller: it is common for people to become less quick to respond to potential crises as they age, as well as experiencing a slowing of one’s reflexes. These factors may signify that someone over a certain age would not do as good a job at a high-pressure position like air traffic control as would a younger worker.
What A BFOQ Is Not
Just as there are misconceptions about what a BFOQ actually is, there are misunderstandings about what a BFOQ is not. Race may never be a BFOQ. Also, generally subjective characteristics cannot be BFOQs except in rare circumstances. For example, religion may be a BFOQ, but only in a religious business. A temple may refuse to hire a non-Jewish rabbi or other ecclesiastical staff.
Mere customer preference or satisfaction is also not considered a BFOQ. The classic example is the case of Diaz v. Pan American World Airways (1971), in which a class of men challenged Pan Am Airways’ long-standing practice of hiring only female flight attendants. The court held that even though Pan Am’s customers articulated a preference for female flight attendants, there was no difference between men and women in terms of performing the actual substantive duties of the job. If there is no difference between the preferred class and the non-preferred class in terms of performing the jobs, by definition a BFOQ does not exist.
Contact An Experienced Attorney
If you need further assistance in determining whether a BFOQ exists in your case, consulting a knowledgeable legal professional is a good idea. Attorney A. Christopher Potts and the firm of Hitchcock & Potts have been handling these types of cases for many years, and can certainly try to help shed light on yours. Contact us today at our Charleston offices to set up an appointment.