Bona Fide Occupational Qualification (BFOQ)

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Updated: 4/11/2007 11:26 am
As you may already know, it's unlawful for employers to discriminate on the basis of age, religion, gender, or national origin when hiring or terminating an employee. There is, however, a major exception to this rule. It occurs when any of those factors is considered a 'bona fide occupational qualification', or BFOQ (B-F-O-Q). A bona fide occupational qualification is defined as any requirement which when viewed on the surface seems biased, but actually is reasonably necessary for the performance of the job. For example, religion could be considered a bona fide occupational qualification when membership in a certain religion is reasonably necessary to the performance of a job. A company selling religious books might be allowed to insist on hiring sales people of the particular religion involved. The company, however, could not refuse to hire a janitor because of his religion, as it would not be 'reasonably necessary' to the operation of the business. Any limitation or specification made by an employer, which otherwise would constitute discrimination, is only permitted if it's based upon a bona fide occupational qualification. To establish a case for BFOQ, the employer must be able to demonstrate that the discriminatory criteria is sufficiently related to the job in question and that it's a necessity for the general operation of the business. If employers can't demonstrate a business necessity for the discriminatory criteria, they must stop using that procedure or alter it in such a way that it's no longer discriminatory. Keep in mind that even if employers can demonstrate that a discriminatory requirement is valid, they can't use it if there are other procedures or requirements that would accomplish the same goal and have less of a discriminatory effect. It should also be noted that unless privacy is a concern, a BFOQ exception can't be used in cases where the refusal to hire is based on the personal preferences of co-workers, the employer, clients, or customers. For example, gender-based staffing in a medical setting may be a BFOQ when it's necessary due to patients' privacy concerns, but not hiring a female for a sales job because particular customers refuse to conduct business with women is unlawful. Consequently, even though it's generally good business practice to try to provide customers with what they want, employers may nonetheless be held liable under the employment laws for doing so.
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