Employees across the country are protected from being discriminated against due to their membership in a protected class. While federal laws provide various protections, many employees in New York City are offered even more through state and local employment laws. However, even with these protections in place, there are still rare occasions where it’s permissible for an employer to consider a person’s membership in a protected class when making employment decisions. In most cases, using protected characteristics in hiring decisions is an illegal form of employment discrimination, but there are jobs where these exclusions may be bona fide occupational qualifications.
Understanding bona fide occupational qualifications and when they’re actually necessary can be difficult. When you believe you’re facing discrimination and suffering a violation of your employee rights, you need an experienced employment discrimination attorney who can help.
What Does a Bona Fide Occupational Qualification Mean?
A bona fide occupational qualification (BFOQ) is an exception to laws prohibiting discrimination in employment. In very rare situations, an employer may determine that a person’s protected characteristics can make them more or less qualified for a job.
According to CM-625 Bona Fide Occupational Qualifications, a statutory provision of the Title VII of the Civil Rights Act of 1964, a BFOQ “recognizes that in some extremely rare instances a person’s sex, religion, or national origin may be reasonably necessary to carrying out a particular job function in the normal operation of an employer’s business or enterprise.” Under Title VII, a BFOQ is an exception to its prohibition of sex, religion, or national origin discrimination. It also states that race cannot, under any circumstances, be used as a BFOQ. Bona fide occupational qualifications are very narrowly interpreted.
To have a bona fide occupational qualification, employers must:
- List the reasons for excluding members of a protected class.
- Identify the essence of their business by analyzing the product or service they provide.
- Determine the essence of their business would be undermined by hiring people in the excluded protected class.
- Determine if the job has been successfully performed by members of the excluded protected class before.
- Interview those who have or had the job to determine if being in a certain protected class is necessary for doing the job successfully.
Title VII is not the only law that makes exceptions for bona fide occupational qualifications. Various laws that prohibit discrimination based on protected characteristics include provisions for BFOQs, including the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law.
Examples of Bona Fide Occupational Qualifications
There are very few situations where bona fide occupational qualifications are allowed. Not only are these instances rare, but employers need to be certain they have a valid business reason for excluding members of a protected class.
A few examples of times where a BFOQ may be necessary include:
- Age limited for airline pilots.
- Religious institutions hiring only members of their own religion to be clergy members.
- Only hiring female employees to model for female clothing.
- Requiring employees to speak English fluently if speaking English is necessary to perform the job effectively.
Because exceptions to bona fide occupational qualifications are very rare, there are many instances of employers’ reasons for excluding protected classes being rejected. What some employers attempt to call a BFOQ can actually be discriminatory employment practices. Some examples of invalid BFOQs include:
- Requiring that language teachers be born in a certain country.
- Not hiring women because the employer believes the work is too dangerous for women.
- Hiring only employees of a certain gender based on customer preference if the work isn’t dependent on a person’s gender.
Contact NYC Employment Discrimination Lawyers for Help
When you feel like your membership in a protected class is being used to keep you from getting a job, it can be hard to understand if this is discrimination or a valid bona fide occupational qualification. If you suspect that you’re experiencing employment discrimination, you need an employment discrimination attorney to help you get justice.
Contact the employment discrimination attorneys of Bantle & Levy today if you believe you’re being discriminated against.