Bona Fide Occupational Qualification

What Is a Bona Fide Occupational Qualification?

A bona fide occupational qualification (BFOQ) is a legally allowed restriction of hiring and employing a person based on their sex, religion, or national origin. To be defined as legal, or “bona fide,” the qualifications should relate to the particular business’s necessary operations, as well as the position’s essential job functions.

To say it differently, the BFOQ law allows for necessary employment discrimination based on sex, religion, or national origin if the particular business’s operations or the job position’s duties justify it.

The Bona Fide Occupational Qualifications rule is the exception to Title VII of the Civil Rights Act, which prohibits employment discrimination “based on race, color, religion, sex and national origin.”

What Laws Establish How Employers Can Hire Based on BFOQs?

Title VII of the Civil Rights Act of 1964 is the law that is established regarding the illegality of employment discrimination. Within that law is a statutory provision titled CM-625 Bona Fide Occupational Qualifications, which contains an exception to Title VII’s “prohibition of discrimination based on sex, religion, or national origin. That exception, called the bona fide occupational qualification (BFOQ), recognizes that in some extremely rare instances a person's sex, religion, or national origin may be reasonably necessary to carrying out a particular job function in the normal operation of an employer's business or enterprise.” 

Some other laws that have helped guide the practical application of CM-625 are:

• The Age Discrimination in Employment Act of 1967

• 29 U.S. Code - Labor

• 42 U.S. Code - Unlawful Employment Practices

• The Pregnancy Discrimination Act of 1978

Is Gender a Bona Fide Occupational Qualification?

Gender generally applies to the BFOQ exception if only one certain gender is necessary to perform job duties. 

The BFOQ exception does not apply for:

• Only a specific person/s of a certain gender

• Stereotypical characterizations of a certain gender

Can Religion Be a BFOQ?

Religion can only be a BFOQ if the very nature of the business is undermined by employing someone who is/isn’t a member of a certain religion. 

To qualify for religious BFOQ, an employer must show evidence that the job can not be successfully performed by a member of another religion because it would impair normal operations of the business.

Why Is Age a Bona Fide Occupational Qualification for Airline Pilots?

The Age Discrimination Act of 1967 makes it unlawful for employers to discriminate based on age. However, the act does contain a BFOQ exemption for age, due to safety considerations of certain jobs being performed. This is the case with airline pilots and bus drivers.

What Are Some Examples of BFOQ That Are Allowable?

Some examples of allowable BFOQ are:

• Airline pilots and bus drivers who are assigned a mandatory retirement age.

• Church employees who must be a member of the denomination to fulfill job duties.

• Models or actors who need to show authenticity in a role.

As you can see, the scope of allowance is quite narrow when it comes to bona fide occupational qualifications, and race is never allowed as a BFOQ. 

For additional context, here are some examples of invalid BFOQ claims:

• Females can’t do the work.

• The job is too dangerous or unpleasant for women.

• The employer or its managers, other employees, clients, or customers prefer males/females even though the work isn’t reliant on a specific gender to fulfill a job role.

• There are no separate restroom/changing room facilities available. 

• It’s too hard/time-consuming to qualify male/female job applicants.

• The job requirement states the applicant must speak, read, and write fluent Hebrew, therefore they must be Israeli born.

• The duties require someone younger because the job requires heavy lifting.

• The business owner is Catholic and doesn’t want to employ a Scientologist.

When a claim of BFOQ is made, the employer must take the following steps to verify their stance:

1. List reasons for the exclusion of a person.

2. Identify the “essence” of the business.

3. Determine how the business “essence” would be undermined without BFOQ.

4. Determine whether the job has been successfully performed by someone else with a BFOQ identifying characteristic, whether for the employer or similar employers.

5. Interview the people who currently hold or have held in the past the job position about whether the BFOQ is required for successfully performing the job.