Bona Fide Occupational Qualification (BFOQ)
The only way to use a BFOQ as a legitimate position qualification is to prove that no one outside of the job requirement that is defining the exception qualification can effectively complete the job.
A Bona Fide Occupational Qualification (BFOQ) is a legitimate Title VII exception. However, the EEOC seldom grants them. Organizations should be extremely cautious about choosing this path.
What is a Bona Fide Occupational Qualification (BFOQ)?
A BFOQ is a term used in very narrow, specific circumstances that allow employers to define candidate requirements outside the rules set forth by Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) is the agency responsible for overseeing this regulation’s enforcement. You must be able to prove that no one outside of the job requirement that is defining the exception qualification can effectively complete the job. This is the only way to use a BFOQ as a legitimate position qualification.
Why is understanding Bona Fide Occupational Qualifications important to your business?
BFOQs have been rather prominent in the news. The transition and challenge of various protected class definitions are resulting in the definition of BFOQs becoming more complex. There are very few legitimate reasons the EEOC recognizes BFOQs as part of a hiring process. According to the EEOC, the following general parameters apply for companies interested in using BFOQs:
- List the reasons for excluding members of other protected classes (sex, national origin, age, or religion) from consideration for the job in question.
- Identify the essence of the employer’s business.
- Determine if failure to exclusively employ members of the specific protected class will undermine the business’ core. In other words, is it essential to the business’ regular operation to hire a member of the particular protected class?
- Ascertain if the job in question has been successfully performed by members of people outside the preferred protected class without negatively impacting the business’ regular operation, either for you, as the employer, or for other employers with similar companies.
- Interview people who currently hold or have previously held the job.
- Evaluate the legitimacy of successful job performance. Is it a reasonable requirement that only members of a given protected class perform the role?
The EEOC states that using BFOQs is extremely rare as it is generally considered a legal form of discrimination against other protected classes. However, there are instances where using a BFOQ is legitimate, such as requiring a specific sex to be cast for a role in a movie or requiring the belief in certain doctrines for an individual to work in a specified religious counseling service.
What is the history of BFOQs?
Interestingly, the Civil Rights Act of 1964’s original definition included Bona Fide Occupational Qualifications as an exception. Since that time, the courts have heard multiple cases that have challenged the use of BFOQs. One such case made clear that making specific requirements based on perceived customer preferences is not a reasonable use of BFOQs. In 1981, Gregory Wilson and 100 other male applicants took Southwest Airlines to court, citing unfair employment practices because the airline did not allow them access to airline attendant positions based on their sex.
Summary
There may be times your business needs to use a BFOQ as a job requirement. Before choosing that path, though, go through the analysis process of determining the legitimacy of that requirement. It’s also wise to check with your legal counsel to confirm that there hasn’t been any case law that negates your use of that qualification. BFOQs are legitimate Title VII exceptions. However, the EEOC seldom grants them. Organizations should be extremely cautious about choosing this path.
