When is it OK to Discriminate? The Bona Fide Occupational Qualification Defense

The bona fide occupational qualification (“BFOQ”) is defense that an employer can use to justify intentional discrimination in some circumstances.

For example, gender discrimination is illegal. But what about a men’s clothing designer who refuses to hire female models? Is the designer required to hire female models? Of course not. Being male is a bone fide occupational qualification for the position.

A BFOQ is a legitimate job criterion upon which employers can legally discriminate in hiring. However, to use this defense, the employer would have to show that nearly all members of the excluded class cannot perform the functions of the job. BFOQs allow discrimination based on age, national origin, and gender (sex) but not race.

Bona Fide Occupational Qualification, a Case Study – The Borgata Babes:

Not long ago, the Borgata Casino in Atlantic City, NJ came under fire for its weight limit for cocktail servers, known as “Borgata Babes.” In defending the weight limit, the Casino alleged that it was part of the appearance that being a cocktail server at Borgata entailed. The question, with respect to BFOQ is what exactly do Borgata Babes do? If they simply serve drinks, then weight has nothing to do with it. If, on the other hand, the Borgata Babes sell the glitz, glamor and sex appeal of a casino, perhaps weight can matter quite a bit.

The court agreed with the Casino, holding that the weight policy was not gender discrimination, largely because it was applied to both genders and that servers were aware of it when they were hired and affirmed that employers can legally maintain policies that require their employees to appear physically fit and "attractive."

Examples:

Age: Mandatory retirement ages for airline pilots and law enforcement for safety reasons and fitness requirements.

Gender: A manufacturer of men's clothing may lawfully advertise for male models, and acting roles that require a certain gender.

National Origin: A restaurant may only hire French chefs.

Religion: A Catholic college may require that its teaching faculty be Catholic.

Questions? Contact us.