Bona Fide Occupational Qualification

The concept of Bona Fide Occupational Qualifications (“BFOQ”) allows employers to hire individuals based on their age, sex, race, national origin, or religion, if these specific qualifications are considered essential to the job, or considered vital to the business’ operation. Hiring employees with BFOQs may be considered a valid defense to Title VII of the Civil Rights Act of 1964, which has protected individuals from discrimination based such attributes for half a century. To explore this concept, consider the following Bona Fide Occupational Qualifications definition.

Definition of Bona Fide Occupational Qualification

Noun

  1. A valid defense to otherwise recognized discrimination such as mandatory retirement at a certain age for airline pilots, for safety reasons, or a religious school requiring its principal or deans to be members of its religious sect.

History of Permissible Discrimination

Title VII of the Civil Rights Act of 1964 made it unlawful for any employer or employment agency to refuse or fail to hire, or to discharge, withhold privileges of employment, or reduce compensation to someone based on that individual’s race, color, religion, sex, or national origin. The interpretation of this law was later expanded to include discrimination based on an individual’s age.

In a later section, however, the Act recognizes the necessity of hiring personnel with certain qualities for certain job positions, specifically stating it is not unlawful for an employer to hire employees based on such considerations when such an attribute as sex, national origin, or religion is considered a necessary qualification for the specific job. This is known as “permissible discrimination.”

Additionally, the law recognizes that educational institutions that are “owned, supported, controlled, or managed by a particular religion,” or at which the curriculum of the educational institution is “directed toward the propagation of a particular religion,” should be allowed to fill certain key positions based on religious affiliation of the applicant. For example, hiring a member of the Catholic Church to fill a key position such as chaplain, president, dean, or teacher at a Catholic college would be considered a permissible discrimination, or BFOQ. The same BFOQ would not, however, be considered necessary for janitorial or secretarial positions at the college.

Examples of Acceptable and Unacceptable BFOQs

Some jobs require attributes that would, under other circumstances, be considered discrimination, including:

  • Mandatory retirement ages for public and mass transit drivers and pilots
  • Religious affiliation for churches and church-operated companies or institutions in key positions
  • The hiring of actors or models of particular sex, national origin, or race for the purpose of authenticity

A job requirement to be bilingual is required to be judged based on an applicant’s competency in the particular language, rather than their national origin.

Customer preference or satisfaction, such as consumers’ perceived preference for female airline attendants, or male mechanics, is generally not an acceptable BFOQ. The exception may be when a company cannot perform its primary service or function without taking into account the sex or sex appeal of certain employees, such as Playboy Bunnies or topless waitresses.

Deciding What Qualifies as a Bona Fide Occupational Qualification

Just what qualifies as a Bona Fide Occupational Qualification is not set in stone. The Equal Employment Opportunity Commission (“EEOC”) maintains an overlong list of What Qualifies as a Bona Fide Occupational Qualification, that many consider incomprehensible. This leaves the final decision to the courts, which have heard an equally long list of complaints featuring a standoff between employers and applicants or employees crying discrimination. One such case involved Southwest Airlines and more than 100 spurned male airline attendant applicants.

Gregory R. Wilson v Southwest Airlines

In 1981, Gregory R. Wilson and 100 other male applicants for positions as airline attendants with Southwest Airlines filed a lawsuit against the airline company, claiming they had been denied employment based on their sex. As a matter of fact, Southwest had employed a marketing firm to boost business, and a new advertising campaign aimed at their most common passengers, male businessmen, hailed the company as “the love airline.” Southwest had begun hiring only attractive female flight attendants and ticket agents, the two positions having the greatest customer contact, and did indeed see a rise in business. But was the practice fair?

For an employer to cite BFOQ as a justifiable defense, it must show that the discrimination is based on a necessity; in other words, the job could not be performed correctly without the discrimination. If Southwest’s flight attendant and ticket agent jobs could be performed by employees of either gender, the company could not claim a justifiable BFOQ defense.

The court found that Southwest Airline’s policy of hiring only female flight attendants and ticket agents was in violation of the Civil Rights Act of 1964, and that the company’s policy of limiting flight attendants to a maximum height of 5 feet nine inches discriminated against male applicants. The company was ordered to pay the Plaintiffs $275,000 in legal fees, and established a $1 million fund for the payment of back pay to the male applicants denied employment.

Related Legal Terms and Issues

  • Difference between race and national origin: On the surface, a person’s race and national origin seem to be the same, but the law views the two separately. This is because the term “race” refers to a person’s physical characteristics, such as skin color, hair type, eye shape, and other traits. National origin, however, refers to the country or region a person came from, or in which their ancestors originated. In today’s global community, populations are diverse, making it less likely that a person’s national origin will dictate their race or physical characteristics.

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