Julie Arney XXXXXXXXXXMonday Dec 9 at 6:20am BFOQs, or bone fide occupational qualifications, are a qualification for a job that makes it legal to exclude certain types of candidates. For example, a...

Julie Arney

BFOQs, or bone fide occupational qualifications, are a qualification for a job that makes it legal to exclude certain types of candidates. For example, a teacher at a Catholic school may be required to be Catholic. For some positions, excluding candidates based on gender, religion, and other protected categories is allowed due to the nature of the position. Employers need to be aware of potential disparate impact or disparate treatment when making hiring decisions like this. For example, just because a teacher at a Catholic school must be catholic, does not mean all employees must be Catholic. It would be difficult to justify why a janitor or cafeteria worker would also need to share the same religious beliefs. If the requirement of being Catholic was in place for all employees at all levels, the employer certainly could be accused for disparate treatment.

Employers also need to ensure the BFOQ is legitimate to prevent an accidental ADA violation. Many disabled employees are able to do a job with some accommodations, which would nullify a potential BFOQ. Good hearing may be required for a customer service operator, but a person hard of hearing could be given a headset with volume controls which may alleviate the issue (Stock & Beegle, XXXXXXXXXXBy not making the accommodation available, this becomes an ADA issue, not a BFOQ.

Stock, W. A., & Beegle, K XXXXXXXXXXEmployment Protections for Older Workers: Do Disability Discrimination Laws Matter?Contemporary Economic Policy,22(1), 111–126. https://doi-org.proxy-library.ashford.edu/10.1093/cep/byh009

Christopher Batastini

It seems that the protected classes of people in relation to discrimination actions are confused by many Human Resource (HR) departments when they advertise for potential applicants. The five categories that may not be directly discriminated against are race, color, religion, sex and national origin. Sometimes these protected classes may seem to be discriminated against in certain job postings or even after hiring. Provided that the individual can provide proof that they were not hired because of one of these may give them a direct lawsuit and will not be questioned. Title VII does not provide a BFOQ exception for race or color. (Griffin, XXXXXXXXXXThere have been cases that employers ask for a specific gender has been brought into question as a BFOQ violation. A perfect example would be BFOQs are generally not allowed based on customer preference for employees of a particular gender. (Griffin, XXXXXXXXXXThis claim has particularly been made in the context of hiring women based on their “sexiness and eye-candy appeal". The most notable case involves Hooters Restaurant(Links to an external site.) and its claim that employing scantily clad female servers is integral to its business model. In a settlement with EEOC, Hooters continues this practice but has also agreed to hire more men in non-server positions. Job seekers should not expect to see this exception often, if at all. In settlement, the restaurant agreed to hire more males in non-waitress roles.

The military had some degree of discrimination but not against the EEOC rules but rather against what would generally be considered stereotype, faddish, and sometimes even gender bias. These being covered in regulations and instructions were thought of as “legalized” discrimination. For example, men could not have hair that was as long as women’s, if a Caucasian was to show up wearing corn rows or dreadlocks, they would be sent home immediately and or written up.

Chris