Aiken & Aiken

Sheila Aiken April 14th, 2008

Title VII of the Civil Rights Act of 1964 prohibits employers (with 15 or more employees) from discriminating against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment due to the individual’s race, color, religion, sex, or national origin.  However, Title VII also includes a defense to discrimination known as the “bona fide occupational qualification” defense, or “BFOQ” defense.   

Title VII allows for employers to discriminate on the basis of religion, sex, or national origin in their hiring and employment practices in 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 …”.  Courts have determined that discrimination on the basis of religion, sex, or national origin is permissible if the discriminatory action is required due to the “essence of the business”.  Note that “race” and “color” are conspicuously absent from the allowed BFOQ defense.  Under Title VII, there cannot be any reason that would justify discrimination on the basis of race or color.

In order to show that a discriminatory action was allowable as a BFOQ, an employer must prove:

1. There is a direct relationship between the protected characteristic and the ability to perform the job duties;
2. The bona fide occupational qualification directly relates to the “essence” or to the “central mission of the employer’s business”; and
3. There is no less-restrictive, reasonable alternative available to the employer

Employers who attempt to use the BFOQ “defense” to discrimination need to be aware that courts have interpreted the statute very narrowly and will only infrequently find that a permissible BFOQ exists.  One of the seminal cases on BFOQ exceptions is International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et. al. v. Johnson Controls, Inc.  In that case, the employer established a policy excluding fertile women from working in a position that required exposure to high doses of lead, in order to protect the possible unborn fetuses from damage due to the lead exposure. 

In that case, the U.S. Supreme Court found that the BFOQ defense was not available to the employer.  The Court specifically stated that the BFOQ exception must be interpreted narrowly, and advised that “[n]o one can disregard the possibility of injury to future children; the BFOQ, however, is not so broad that it transforms this deep social concern into an essential aspect of battery-making.”

When considering whether to adopt a discriminatory business practice due to a BFOQ, employers should seek advice from legal counsel before taking any action.  Because of the restrictive language of the statute itself, and the extremely narrow interpretation of the statute by the judiciary, advice from an attorney on whether a specific situation would rise to the level of an allowable BFOQ would be invaluable in preventing liability for discrimination claims down the road. 

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