Everything about Bona Fide Occupational Qualifications totally explained
A
bona fide occupational qualification (
BFOQ), in
employment discrimination law in the United States, 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 be considered
discriminatory and thus violating
civil rights employment law.
United States Code Title 29 (Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that "It shan't be unlawful for an employer, employment agency, or labor organization (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located."
One example of bona fide occupational qualifications are
mandatory retirement ages for
bus drivers 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, an
church may lawfully require that members of its
clergy be members of that denomination, and may lawfully bar anyone who isn't a member from employment.
Bona fide occupational qualifications generally only apply to occupations where the BFOQ is considered necessary to that profession. 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.
In
Canadian law the same concept is used, though it's sometimes called a
bona fide occupational requirement (
BFOR). 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 overturned the
Bhinder decision, writing "An employer that hasn't adopted a policy with respect to accommodation and can't 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 BFOQ defence."
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