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Private Sector Bona Fide Occupational Qualifications

Age discrimination is a type that is perhaps less talked about than, say, discriminating on the basis of race or gender. However, it can be just as insidious, and just as damaging. It is illegal to discriminate on the basis of age, except in situations where age can be shown to be a bona fide occupational qualification (BFOQ). Bona fide occupational qualifications are narrow characteristics that are necessary to perform the job. But in some cases, the same characteristics can be grounds on which a company discriminates. Let’s take a look at bona fide occupational qualifications in the private sector.

What Is A BFOQ?

Normally, hiring or firing on the basis of protected characteristics like race, gender, nationality, and age is prohibited as discriminatory under Title VII of the Civil Rights Act of 1964. However, in some unusual situations, it is necessary to discriminate based on protected characteristics, because those characteristics (or lack thereof) are critical to being able to perform the job properly. This is called a bona fide occupational qualification. If an employer can demonstrate that one exists, it is a complete defense to any charge of discrimination.

Determining whether something is actually a BFOQ will be determined on a case-by-case basis. This is because each industry is different and each company within that industry will do things differently. Generally, however, to establish a BFOQ, an employer must be able to demonstrate that all workers without that qualification would not be able to perform the job successfully. This can be quite difficult to establish.


The most commonly cited characteristic used as a BFOQ is age. Employers in several industries, including fashion, transportation, and law enforcement, routinely allege that workers who reach a certain age no longer have the ability to perform their jobs. While the Age Discrimination in Employment Act (ADEA) forbids discrimination against workers over the age of 40, this does not apply if the employer can demonstrate that reaching an advanced age does actually impair one’s ability to do their job. For example, air traffic controllers are usually urged to retire after they reach age 50, because allegedly, reflexes and brainpower slow after that point, and that might lead to accidents.

If you believe you have been discriminated against due to your age, you have options. The burden of proof is on the employer to establish that discriminating based on age is a BFOQ in your industry, and they must show that if you are too old (or too young, for that matter), you cannot perform the job’s requirements. This is not easy, and if you have an attorney on your side, you can try to rebut some of the allegations your employer may make.

Call An Employment Discrimination Attorney Today

Just because you reach a certain age does not mean that you are no longer able to be a valuable employee. If you suspect you have been discriminated against, contacting a knowledgeable attorney can help answer your questions and help you decide how best to proceed. Attorney A. Christopher Potts has been handling these cases for years, and is happy to try and help you with yours. Contact Hitchcock & Potts today to schedule an appointment.

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