United States federal fair employment laws generally prohibit discrimination in employment on the basis of certain protected characteristics, including race, color, religion, sex, national origin, age, and disability. However, the fair employment laws permit employers to discriminate based on a protected characteristic in rare situations where the characteristic is considered a bona fide occupational qualification for the job in question.
The bona fide occupational qualification (BFOQ) defense is potentially available in those Title VII cases where it has been established, and not merely alleged, that an employer’s employment policy intentionally discriminated on the basis of religion, sex, or national origin. The BFOQ defense does not apply to discrimination based on race or color. It is also potentially available in cases involving employer policies that have been shown to intentionally discriminate the basis on age (Age Discrimination in Employment Act) or disability (Americans With Disabilities Act). Where successfully asserted, the BFOQ defense allows employers to treat job applicants or employees differently depending on their protected class status (religion, sex, national origin, age, disability), making permissible conduct that would otherwise be considered illegal discrimination. For example, although Title VII generally prohibits discrimination against job applicants based on their sex, if it is established that being male is a BFOQ for the job in question, the employer may lawfully refuse to consider women for the job. However, it is important to understand that the BFOQ defense is narrowly written and extremely narrowly construed by the courts and that employers asserting the defense have the burden of proving that its stringent requirements (discussed in the following text) are met. As a result, the BFOQ defense is available in relatively few situations.
Required Elements of the BFOQ Defense
To establish a BFOQ, an employer must meet two requirements. First, the employer must prove that a strong, direct relationship exists between the protected characteristic in question (e.g., sex) and an employee’s ability to perform one or more functions of the job in question. Second, the employer must prove that the functions of the job to which the protected characteristic is directly related are important functions that go to the essence or central mission of the employer’s business operation.
The Direct Relationship Requirement
The direct relationship requirement must be met by showing either that all or substantially all members of the group that is being excluded based on a protected characteristic cannot perform the functions of the job, or that it is impossible or highly impractical to determine on an individual basis whether members of the excluded group can perform the functions of the job. For example, an employer seeking to justify a sex-based BFOQ that would allow it to hire only men must show either that all or substantially all females are unable to perform the functions of the job, or that it would be impossible or highly impractical to assess female applicants’ qualifications to perform the job functions on an individual basis, for example, through the use selection tests.
It is clear that the all or substantially all standard can be met without proof that 100% of the excluded class cannot perform the functions of the job in question. However, it is also clear that the employer must produce credible evidence of a strong relationship between the protected characteristic and the ability to perform the job. Relying on stereotypes about the abilities or disabilities of women, older workers, and so on is insufficient. It is also not enough to merely show that members of the excluded group, on average, tend not to perform the job as well. Further, given the vast and growing array of selection tools that are available to assess job applicant qualifications on an individual basis (e.g., assessments of physical strength, motor skills, cognitive ability), it is extremely difficult for employers to successfully argue that they should be able to use a protected characteristic as a general hiring or promotion criterion because it is impossible or highly impractical to assess applicants’ qualifications on a more individualized basis.
Essence of the Business Requirement
It is not enough to show a direct relationship between the protected characteristic in question and a job function that is only incidentally or marginally related to the employer’s business operations. The protected characteristic must be directly related to the ability to perform one or more important job functions that are closely associated with the fundamental purpose(s) of the employer’s business. This means that to determine whether an asserted BFOQ is justified, the court must determine the primary purpose(s) or essence of the business operation in which the job is embedded.
Cases considering whether safety concerns support the BFOQ defense illustrate how the essence of the business requirement affects whether the BFOQ defense is available to employers. Safety concerns may be the basis for a BFOQ but only if the safety concern is indispensable to the particular business at issue. For example, the safety of inmates was found to be a legitimate basis for a sex-based BFOQ applied to the prison guard position, because the safety of inmates goes to the core of a prisons guard’s job performance and the essence of the business in which prisons are engaged. In contrast, when considering whether to exclude female employees of childbearing age from jobs involving exposure to toxic material, the Supreme Court held that concerns about the safety of female employees’ unborn children may not be the basis for a BFOQ because the essence of the employer’s business was manufacturing batteries, and the fetuses of female employees were neither customers nor third parties for whom safety is essential to the business of manufacturing batteries.
Although the availability of the BFOQ defense is determined on a case-by-case basis, and there is some variation in how lower courts interpret and apply the Supreme Court’s rulings in this area, useful guidance for assessing the availability of the BFOQ defense can be provided based on court cases, the legislative history, and EEOC (Equal Employment Opportunity Commission) guidelines. In addition to safety concerns, BFOQs have been recognized based on privacy concerns where, again, those concerns relate to the essence of the employer’s business, such as sex-based BFOQs for bathroom attendant and masseur positions. The BFOQ defense has also been recognized when viewed as necessary to ensure the genuineness or authenticity of an employer’s business operations. Examples of authenticity BFOQs include the use of male and female actors to play male and female roles in theater productions and a restaurant hiring only ethnic chefs where a primary goal of the employer is to maintain an authentic ethnic atmosphere.
The courts have uniformly refused to accept discriminatory customer preferences or biases as a basis for a BFOQ, usually noting that these biases are the type of discrimination that fair employment laws such as Title VII were intended to eliminate. For example, courts have refused to accept the preferences of male customers as a legitimate basis for a BFOQ allowing the hiring of only female flight attendants and have rejected the argument that being male was a BFOQ for an overseas assignment because customers and associates in other countries preferred to do business with men.
Finally, it is well settled that the BFOQ defense cannot be based merely on the incremental or extra cost associated with hiring one protected group versus another. Thus, for example, an employer cannot exclude women from a certain position merely because of concerns that allowing women to occupy the position (i.e., not restricting the position to men) may result in greater health- or liability-related costs for the employer.
- Berman, J. B. (2000). Defining the “essence of the business”: An analysis of Title Vll’s privacy BFOQ after Johnson Controls. University of Chicago Law Review, 67, 749-775.
- Kapczynski, A. (2003). Same-sex privacy and the limits of antidiscrimination law. The Yale Law Journal, 112, 1257-1294.
- Lindeman, B., & Grossman, P. (1997). Employment discrimination law (3rd ed.). Washington, DC: The Bureau of National Affairs.
- McGowan, S. M. (2003). The bona fide body: Title Vll’s last bastion of intentional sex discrimination. Columbia Journal of Gender and Law, 12, 77-127.