Bona fide occupational qualifications
Encyclopedia
In employment law, a bona fide occupational qualification (BFOQ) (US) or bona fide occupational requirement (BFOR) (Canada) is a quality or an attribute that employers
are allowed to consider when making decisions on the hiring and retention of employees
—qualities that when considered in other contexts would constitute discrimination
and thus in violation of civil rights
employment law. Such qualifications must be listed in the employment offering.
, both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act
contain a BFOQ defense. The BFOQ provision of Title VII provides that:
United States Code Title 29
(Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that
One example of bona fide occupational qualifications are mandatory retirement ages for bus driver
s and airline pilots, for safety reasons. Further, in advertising, a manufacturer of men's clothing may lawfully advertise for male models. Religious belief may also be considered a BFOQ; for example, a religious school may lawfully require that members of its faculty
be members of that denomination, and may lawfully bar from employment anyone who is not a member.
Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. For example a Catholic
college may lawfully require such positions as president, chaplain, and teaching faculty to be Catholics, but membership in the Catholic Church would generally not be considered a BFOQ for occupations such as secretarial and janitorial positions.
Mere customer satisfaction
, or lack thereof, is not enough to justify a BFOQ defense, as noted in the cases Diaz v. Pan Am. World Airways, Inc. and Wilson v. Southwest Airlines Co.. Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant
. However, there may be cases in which customer preference is a BFOQ—for example, femininity is reasonably necessary for Playboy Bunnies
. Customer preference can "'be taken into account only when it is based on the company's inability to perform the primary function or service it offers,' that is, where sex or sex appeal is itself the dominant service provided."
regarding bona fide occupational qualifications was considered in a 1985 Canadian court case involving an employee of the Canadian National Railway
, K.S. Bhinder, a Sikh
whose religion required that he wear a turban
, lost his challenge of the CNR policy that required him to wear a hard hat. In 1990, in deciding another case, the Supreme Court of Canada amended the Bhinder decision, writing "An employer that has not adopted a policy with respect to accommodation and cannot otherwise satisfy the trier of fact that individual accommodation would result in undue hardship will be required to justify his conduct with respect to the individual complainant. Even then the employer can invoke the BFOR defence."
Employment
Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
are allowed to consider when making decisions on the hiring and retention of employees
Employment
Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
—qualities that when considered in other contexts would constitute discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
and thus in violation of civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
employment law. Such qualifications must be listed in the employment offering.
United States
In employment discrimination law in the United StatesEmployment discrimination law in the United States
In the United States, employment discrimination is prohibited by a collection of state and federal laws, as well as by ordinances of counties and municipalities. Only discrimination based on certain characteristics is illegal....
, both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act
Age Discrimination in Employment Act
The Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202Code, through , forbids employment discrimination against anyone at least 40 years of age in the United States .-Scope of Protection:...
contain a BFOQ defense. The BFOQ provision of Title VII provides that:
United States Code Title 29
Title 29 of the United States Code
- Code Chapters :Title 29 has 35 chapters:-External links:*, via United States Government Printing Office*, via Cornell University...
(Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that
One example of bona fide occupational qualifications are mandatory retirement ages for bus driver
Bus driver
A bus driver, bus operator or omnibus driver is a person who drives buses professionally. Bus drivers typically drive their vehicles between bus stations or stops. They often drop off and pick up passengers on a predetermined route schedule. In British English a different term, coach drivers, is...
s and airline pilots, for safety reasons. Further, in advertising, a manufacturer of men's clothing may lawfully advertise for male models. Religious belief may also be considered a BFOQ; for example, a religious school may lawfully require that members of its faculty
Teacher
A teacher or schoolteacher is a person who provides education for pupils and students . The role of teacher is often formal and ongoing, carried out at a school or other place of formal education. In many countries, a person who wishes to become a teacher must first obtain specified professional...
be members of that denomination, and may lawfully bar from employment anyone who is not a member.
Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. For example a Catholic
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
college may lawfully require such positions as president, chaplain, and teaching faculty to be Catholics, but membership in the Catholic Church would generally not be considered a BFOQ for occupations such as secretarial and janitorial positions.
Mere customer satisfaction
Customer satisfaction
Customer satisfaction, a term frequently used in marketing, is a measure of how products and services supplied by a company meet or surpass customer expectation...
, or lack thereof, is not enough to justify a BFOQ defense, as noted in the cases Diaz v. Pan Am. World Airways, Inc. and Wilson v. Southwest Airlines Co.. Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant
Flight attendant
Flight attendants or cabin crew are members of an aircrew employed by airlines primarily to ensure the safety and comfort of passengers aboard commercial flights, on select business jet aircraft, and on some military aircraft.-History:The role of a flight attendant derives from that of similar...
. However, there may be cases in which customer preference is a BFOQ—for example, femininity is reasonably necessary for Playboy Bunnies
Playboy Bunny
A Playboy Bunny is a waitress at the Playboy Club. The Playboy Clubs were originally open from 1960 to 1988. The Club re-opened in one location in The Palms Hotel in Las Vegas in 2006...
. Customer preference can "'be taken into account only when it is based on the company's inability to perform the primary function or service it offers,' that is, where sex or sex appeal is itself the dominant service provided."
Canada
The law of CanadaLaw of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
regarding bona fide occupational qualifications was considered in a 1985 Canadian court case involving an employee of the Canadian National Railway
Canadian National Railway
The Canadian National Railway Company is a Canadian Class I railway headquartered in Montreal, Quebec. CN's slogan is "North America's Railroad"....
, K.S. Bhinder, a Sikh
Sikh
A Sikh is a follower of Sikhism. It primarily originated in the 15th century in the Punjab region of South Asia. The term "Sikh" has its origin in Sanskrit term शिष्य , meaning "disciple, student" or शिक्ष , meaning "instruction"...
whose religion required that he wear a turban
Turban
In English, Turban refers to several types of headwear popularly worn in the Middle East, North Africa, Punjab, Jamaica and Southwest Asia. A commonly used synonym is Pagri, the Indian word for turban.-Styles:...
, lost his challenge of the CNR policy that required him to wear a hard hat. In 1990, in deciding another case, the Supreme Court of Canada amended the Bhinder decision, writing "An employer that has not adopted a policy with respect to accommodation and cannot otherwise satisfy the trier of fact that individual accommodation would result in undue hardship will be required to justify his conduct with respect to the individual complainant. Even then the employer can invoke the BFOR defence."