Bona Fide Occupational Qualification

BFOQ: When It's Legal to Discriminate on the Basis of Sex, Age, Etc.

Dior models, late 1960s
Dior models, late 1960s. Jack Robinson/Hulton Archive/Getty Images

edited and with additions by Jone Johnson Lewis

Definition

A bona fide occupational qualification, also known as BFOQ, is a characteristic or attribute required for a job that could be considered discrimination if it were not necessary to perform the job in question, or if the job were unsafe for one category of people but not another. To determine if a policy in hiring or job assignment is discriminatory or legal, the policy is examined to ascertain whether the discrimination is necessary to normal business operation and whether that category denied inclusion is uniquely unsafe.

Exception to Discrimination

Under Title VII, employers are not allowed to discriminate on the basis of sex, race, religion or national origin. If religion, sex, or national origin can be shown to be necessary for the job, such as hiring Catholic professors to teach Catholic theology at a Catholic school, then a BFOQ exception can be made.   The BFOQ exception does not permit discrimination on the basis of race.

The employer must prove that the BFOQ is reasonably necessary to the normal operation of the business or whether the BFOQ is for a unique safety reason.

The Age Discrimination in Employment Act (ADEA) extended this concept of BFOQ to discrimination based on age.

Examples

A restroom attendant can be hired taking into account sex because the users of the restroom have privacy rights.  In 1977, the Supreme Court upheld the policy in a male maximum security prison requiring guards to be male.

A women’s clothing catalog could hire only female models to wear the women’s clothes and the company would have a BFOQ defense for its sex discrimination. Being female would be a bona fide occupational qualification of the modeling job or an acting job for a specific role.

However, hiring only men as managers or only women as teachers would not be a legal application of a BFOQ defense.

Being a certain gender is not a BFOQ for the vast majority of jobs.

Why Is This Concept Important?

The BFOQ is important to feminism and women’s equality. Feminists of the 1960s and other decades successfully challenged stereotypical ideas that limited women to certain professions. This often meant reexamining ideas about job requirements, which created more opportunities for women in the workplace.

Johnson Controls, 1989

Supreme Court decision: International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989)

In this case, Johnson Controls denied certain jobs to women but not to men, using the "bona fide occupational qualification" argument.  The jobs in question involved exposure to lead that could harm fetuses; women were routinely denied those jobs (whether pregnant or not). The appellate court ruled in favor of the company, finding that the plaintiffs had not offered an alternative that would protect a woman's or a fetus' health, and also that there wasn't evidence that a father's exposure to lead was a risk to the fetus.

The Supreme Court held that, on the basis of the Pregnancy Discrimination in Employment Act of 1978 and Title VII of the Civil Rights Act of 1964, the policy was discriminatory and that ensuring fetal safety was at "the core of the employee's job performance," not essential to be employed in the work of making batteries.

 The Court found that it was up to the company to provide safety guidelines and inform about risk, and up to workers (parents) to determine risk and take action. Justice Scalia in a concurring opinion also raised the issue of the Pregnancy Discrimination Act, protecting employees from being treated differently if pregnant.

The case is considered a landmark for women's rights because otherwise so many industrial jobs could be denied to women where there is a risk to fetal health.