What is an example of a bona fide occupational qualification?

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The Bona Fide Occupational Qualification Exception: Overview
BFOQ: Examples
BFOQ or Discrimination? Get Help From an Attorney

A bona fide occupational qualification or BFOQ is an affirmative defense to discrimination prima facie. Bona fide occupational qualifications can be made for national origin, religion, and sex.

42 U.S. Code § 2000e-2 allows for an employer to discriminate against employees and potential employees "on the basis of his religion, sex, or national origin in those certain 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." For example, a bona fide occupational qualification could be made that a priest must be Catholic. Race and color, however, are never bona fide occupational qualifications.

See: Civil Rights Act of 1964

Bona fide occupational qualifications are present in other federal statutes as well. The Age Discrimination in Employment Act (ADEA) was enacted to prevent age discrimination in the workplace. The ADEA does contain a bona fide occupational qualification exemption, and the ADEA also requires that the age discrimination must be “reasonably necessary to the normal operation of the particular business.”

Bona fide occupational qualifications typically are invoked when an employer has been accused of employment discrimination. The employer may use the defense that the discrimination was based on a bona fide occupational qualification. Bona fide occupational qualifications are often used for safety reasons, such as imposing a mandatory retirement age for airline pilots and bus drivers.

The court may grant bona fide occupational qualification in three circumstances:

The first circumstance is for privacy reasons. For instance, requiring at least one security hospital treatment assistant assigned to each psychiatric hospital ward to be the same gender as the ward’s patients was permissible as a bona fide occupational qualification. See: Jennings v. New York State Office of Mental Health, 977 F.2d 731 (2d Cir. 1992).
The second circumstance is for authenticity in the arts: for film, theater, and television. This is because the First Amendment overrides Title VII in artistic works where the qualification is integral to the story or artistic purpose.
Last is if the bona fide occupational qualification relates to the normal operation or essence of the business. For example, the court considered a mandatory retirement age of 62 for corporate pilots a bona fide occupational qualification for safety reasons because of how the mental and physical functions necessary for a pilot’s performance begin breaking down after the age of 60. See: Rasberg v. Nationwide Life Insurance Company, 671 F.Supp. 494 (1987).

Customer satisfaction, or lack thereof, is insufficient to justify a BFOQ defense. For instance, customer preference for female flight attendants does not make femininity a BFOQ.

See: Diaz v. Pan American World Airways, Inc., 346 F.Supp. 1301 (S.D. Fla. 1972).

[Last updated in December of 2021 by the Wex Definitions Team]

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Bona fide occupational qualifications (BFOQ) are employment qualifications that employers are allowed to consider while making decisions about hiring and retention of employees. The qualification should relate to an essential job duty and is considered necessary for operation of the particular business.

The Bona Fide Occupational Qualifications rule allows for the hiring of individuals based on race, sex, age, and national origin if these characteristics are bona fide occupational qualifications. This is an exception and complete defense to Title VII of the Civil Rights Act of 1964 which protects employees from discrimination based on religion, sex, age, national origin and color at the workplace.

In order to establish the defense of bona fide occupational qualification, an employer must prove the requirement is necessary to the success of the business and that a definable group or class of employees would be unable to perform the job safely and efficiently. An employer should demonstrate a necessity for a certain type of workers because all others do not have certain characteristics necessary for employment success. However the employer's motivation for excluding the protected class is not significant in evaluating the BFOQ defense. The inquiry focuses on the necessity of using an expressly forbidden classification.

Examples of BFOQ's are: mandatory retirement ages for bus drivers and airplane pilots for safety reasons, churches requiring members of its clergy to be of a certain denomination and may lawfully bar, from employment, anyone who is not a member. However, for positions at a church such as janitors, discrimination based on religious denomination would be illegal because religion has no effect on a person's ability to fulfill the duties of the job. Other examples of bona fide occupation qualifications include the use of models and actors for the purpose of authenticity or genuineness, the requirement of emergency personnel to be bilingual, judged on language competency, not national origin.

Example of a portion of a statute in Illinois mentioning bona fide occupational qualification

775 ILCS 5/2-104 [ Illinois Human rights Act, Article 2 Employment] Exemptions

Sec. 2-104. Exemptions. (A) Nothing contained in this Act shall prohibit an employer, employment agency or labor organization from:

(1) Bona Fide Qualification. Hiring or selecting between persons for bona fide occupational qualifications or any reason except those civil-rights violations specifically identified in this Article.

Discrimination against people based on their race, religion, gender, national origin, age or other protected status is generally prohibited under the laws of the U.S. However, in some rare circumstances, the very nature of the job requires you to choose candidates based on what are otherwise protected characteristics.

For example, imagine you are a church looking to hire a new clergy member. Obviously, a Lutheran church wants to hire someone who is Lutheran and it wouldn't make sense for them to hire a Catholic. Similarly, the Catholic Church understandably wants to hire Catholics, not Lutherans. Normally, this qualifies as religious discrimination because job candidates are expressly being hired or not based on their religious beliefs.

While normally we want to prohibit hiring or firing based on protected characteristics, in this narrow circumstance, it makes sense to allow employers to effectively discriminate against otherwise qualified individuals. The law allows for these sorts of employment considerations through what is known as a bona fide occupational qualification (BFOQ) exception.

The Bona Fide Occupational Qualification Exception: Overview

In order to use the BFOQ exception, an employer must prove that no member of the group you are discriminating against could perform the job. Using the religious example above, a Lutheran church would argue that only a Lutheran could effectively practice and preach the tenants of their religion and a Catholic would be unable to perform the job due to his or her beliefs.

Courts are very careful to only allow very narrow exceptions to the general prohibition of discrimination against a protected status, and in the case of race there is no exception in case law. The most common exceptions are generally crafted for religion and gender. As an employer, you have to be exceptionally careful, because what may make perfect business sense to you won't be successful in court.

For example suppose you were a retail store that sold the latest fashions to a hip and trendy demographic. Although you may justifiably believe that a pretty young girl would be the best candidate for a sales person, if you turned down an older candidate who was otherwise qualified because they were simply "too old", you may find yourself facing an age discrimination lawsuit. From a court's perspective, there is nothing about the duties of a salesperson that an older candidate couldn't do that a younger, prettier candidate could.

BFOQ: Examples

One of the best ways to understand BFOQ exceptions is to look at examples where courts have allowed what would otherwise be considered discriminatory:

For airline pilots, mandatory retirement age requirements were allowed because safety was the primary concern and airlines could show that older pilots were significantly less safe once they reached a certain age.
Male clothing designers could legally advertise for male models only, where female models wouldn't be able to model men's clothing as intended.
Churches can legally hire only members of their church and reject clergy from other religions.
An airline was allowed to hire only pilots of a certain religious background because one of the countries that the airline flew over prohibited, under punishment of death, the presence of people outside of this religion.

BFOQ or Discrimination? Get Help From an Attorney

Even if you are quite positive that a certain type of employee would (or wouldn't) be a good fit for your business, you could open yourself up to a discrimination lawsuit if you're not careful. An employment law attorney can help you determine whether a certain job requirement can legally be called a bona fide occupational qualification. Don't take any chances; get help today from a local employment law attorney.

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Contact a qualified business attorney to help you prevent and address human resources problems.