The BFOQ Exception to Discrimination Laws

Issue: After all that has been said about the prohibitions on discrimination on the basis of sex, religion, national origin, or age, it may come as a surprise to learn that federal law specifically permits the use of these characteristics as qualifications for some jobs. As an HR professional, what do you need to know about the bona fide occupational qualification (BFOQ) exception to federal employment discrimination laws?

Answer: Title VII of the Civil Rights Act of 1964 provides that employment decisions may be made on the basis of sex, religion, or national origin (but not race or color) if the sex, religion, or national origin is a BFOQ reasonably necessary to the normal operation of the business. The Age Discrimination in Employment Act of 1967 contains a similar provision for the BFOQ exception in regard to age.

The availability of a BFOQ exception is predicated on two conditions: (1) A particular religion, sex, national origin or age must be an actual qualification for performing the job; and (2) the requirement must be necessary to the normal operation of the employer’s business. The same exception is allowed for job notices and advertisements, where the position at issue requires a worker of a particular religion, sex, national origin or age. The availability of a claimed BFOQ exception is determined on a case-by-case basis.

HR professionals should keep in mind the following points from the Equal Employment Opportunity Commission (EEOC) regarding the BFOQ:

1. There is no BFOQ for race or color.
2. The BFOQ exception has been narrowly construed. The employer must prove that only individuals of one sex, national origin, religion or age group can perform the duties of the job in a safe and efficient manner, and that the essence of the business would be undermined by not hiring exclusively members of a given class.
3. Customer preferences and stereotypic notions concerning the capabilities of persons of a particular sex, religion, national origin or age do not warrant application of this exception.

SOURCES: “Employer EEO Responsibilities: Preventing Discrimination in the Workplace: The Law and EEOC Procedures” by the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised); and “Age Discrimination: Employment Discrimination Prohibited by The Age Discrimination in Employment Act of 1967, as Amended” by the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised).

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