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Remember: BFOQ is rarely used. When it comes up it’s usually when you are writing a job description and defining what a position does within your company. When a BFOQ is used, it’s very limited and narrow in it’s defense of protected categories. BFOQs are not meant to be interpreted broadly because it should not be used as an excuse for why discrimination happens.
What Are Bona Fide Occupational Qualifications (BFOQs)?
Bona Fide Occupational Qualifications is a term that originates in Title VII of the Civil Rights Act (1964). It allows discriminatory practices in employment if a person’s religion, sex, or national origin are reasonably necessary to perform a job of a particular business. BFOQ allows an employer to exclude persons on otherwise illegal bases of consideration (for example, gender or age). The business or company needs to show that such factors are essential in performing that particular job. If a company cannot prove that these factors are essential in the completion of the job, then the discrepancy in hiring falls into discrimination and legal action.
The Importance of Understanding BFOQs
An HR professional needs to be aware of the BFOQ doctrine because of the responsibility they have in making sure the company is legally compliant in creating an ethical and fair workplace for the company and the employees. There are rare opportunities in using BFOQs that come into play in a few areas, including job descriptions.
- Laws. The EEOC laws in hiring are plain and direct about discriminiation, but there is an exception and that is where BFOQs come into play. An attribute or quality that is necessary to the function of a job can be considered when interviewing applicants. For example, a religious institution when hiring will want to make sure you are a member of its religion.
- Responsibility. The business has the responsibility and burden of demonstrating reasonably and verifiably why the job requires gender, religion, or national origin (BFOQ). They have to show why these traits are necessary in performing the job. The BFOQ needs to clearly prove and persuade how it serves a business purpose.
- Job Descriptions. When writing a job description, never assume a need for a BFOQ. This is one way that one comes across as being biased and intentionally discriminating. A job description lays out the essential functions and responsibilities of a job.
How to Know If Something Is a BFOQ
Since this is a legal issue, it’s important to understand the usage of BFOQs and recognize when they come into play. Typically an HR professional will run into BFOQs when interviewing or writing job descriptions. The steps below lay out things to keep in mind when determining a BFOQ.
Step 1: Assess Business Need
Be objective, reasonable, and specific to the business need to justify any BFOQ. Focus on how it’s essential for the success of the business and that there is no other legitimate way to discriminate based on the permissible protected categories.
Step 2: Consider Bias
As you work through proving a need for a BFOQ, make sure that you are aware of any stereotypes, biases, and assumptions about people that could be used to argue that your business is discriminating. Use appropriate assessments, rational witnesses, and research based data when making decisions.This way you will be able to prove that you are working towards ethical and fair decisions that demonstrate a business need.
Step 3: Teach Respect
Whether your company has or has not used a BFOQ at any time, it will be important to work towards equality and respect for all employees in the workplace. This will be key in a business moving forward successfully. This can be done through offering diversity education/training or conducting a diversity audit.
Examples of Bona Fide Occupational Qualifications
If you are not sure what qualifies as a BFOQ, below are some examples:
- Being female for a women’s bathing suit model.
- A religious institution may require that its clergy share the religious beliefs of the hiring institution. Title VII permits religious organizations to hire and employ people on the basis of religion.
- A theater hiring performers for male roles may exclude female applicants from consideration.
- Setting a mandatory retirement age for airline pilots. This age restriction is to achieve public safety.
- If an essence of a restaurant relies on one sex versus another (e.g., Hooters), they may not be required to hire male servers.
Examples of Job Qualifications that Are Not BFOQs
Below are illegal applications of BFOQs:
- Race has never been a BFOQ. This is not favored legally or ethically. It is believed that there is never a situation where the color of skin matters when performing a job.
- Not hiring someone who has a strong accent. It’s acceptable for a business to want to hire someone who can clearly and comprehensibly speak but this can be seen as national origin discrimination.
- Outside of the health care world, if a customer has a preference as to whether the person who helps them is male or female does not sustain the need for a BFOQ.
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