United States
In employment discrimination law in the United States, both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act contain a BFOQ defense. The BFOQ provision of Title VII provides that:
| “ | t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin 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… | ” |
United States Code Title 29 (Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that
| “ | "It shall not be unlawful for an employer, employment agency, or labor organization (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located." | ” |
One example of bona fide occupational qualifications are mandatory retirement ages for bus drivers and airline pilots, for safety reasons. Further, in advertising, a manufacturer of men's clothing may lawfully advertise for male models. Religious belief may also be considered a BFOQ; for example, a religious school may lawfully require that members of its faculty be members of that denomination, and may lawfully bar from employment anyone who is not a member.
While religion, sex, or national origin may be considered a bona fide occupational qualification in narrow contexts, race can never be a BFOQ.
Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. For example a Catholic college may lawfully require such positions as president, chaplain, and teaching faculty to be Catholics, but membership in the Catholic Church would generally not be considered a BFOQ for occupations such as secretarial and janitorial positions.
Mere customer satisfaction, or lack thereof, is not enough to justify a BFOQ defense, as noted in the cases Diaz v. Pan Am. World Airways, Inc. and Wilson v. Southwest Airlines Co.. Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant. However, there may be cases in which customer preference is a BFOQ—for example, femininity is reasonably necessary for Playboy Bunnies. Customer preference can "'be taken into account only when it is based on the company's inability to perform the primary function or service it offers,' that is, where sex or sex appeal is itself the dominant service provided."
Read more about this topic: Bona Fide Occupational Qualifications
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