A bona fide occupational qualification or BFOQ is an affirmative defense to discrimination prima facie. Bona fide occupational qualifications can be made for national origin, religion, and sex.
42 U.S. Code § 2000e-2 allows for an employer to discriminate against employees and potential employees "on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." For example, a bona fide occupational qualification could be made that a priest must be Catholic. Race and color, however, are never bona fide occupational qualifications.
Bona fide occupational qualifications are present in other federal statutes as well. The Age Discrimination in Employment Act (ADEA) was enacted to prevent age discrimination in the workplace. The ADEA does contain a bona fide occupational qualification exemption, and the ADEA also requires that the age discrimination must be “reasonably necessary to the normal operation of the particular business.”
Bona fide occupational qualifications typically are invoked when an employer has been accused of employment discrimination. The employer may use the defense that the discrimination was based on a bona fide occupational qualification. Bona fide occupational qualifications are often used for safety reasons, such as imposing a mandatory retirement age for airline pilots and bus drivers.
The court may grant bona fide occupational qualification in three circumstances:
- The first circumstance is for privacy reasons. For instance, requiring at least one security hospital treatment assistant assigned to each psychiatric hospital ward to be the same gender as the ward’s patients was permissible as a bona fide occupational qualification. See: Jennings v. New York State Office of Mental Health, 977 F.2d 731 (2d Cir. 1992).
- The second circumstance is for authenticity in the arts: for film, theater, and television. This is because the First Amendment overrides Title VII in artistic works where the qualification is integral to the story or artistic purpose.
- Last is if the bona fide occupational qualification relates to the normal operation or essence of the business. For example, the court considered a mandatory retirement age of 62 for corporate pilots a bona fide occupational qualification for safety reasons because of how the mental and physical functions necessary for a pilot’s performance begin breaking down after the age of 60. See: Rasberg v. Nationwide Life Insurance Company, 671 F.Supp. 494 (1987).
Customer satisfaction, or lack thereof, is insufficient to justify a BFOQ defense. For instance, customer preference for female flight attendants does not make femininity a BFOQ.
See: Diaz v. Pan American World Airways, Inc., 346 F.Supp. 1301 (S.D. Fla. 1972).
[Last updated in December of 2021 by the Wex Definitions Team]