Legal discrimination in four letters: BFOQ
written by attorneys with the Connecticut law firm of Halloran & Sage LLP

Can discrimination be legal? The short answer is yes. In this age of political correctness and an overabundance of litigation based on age and gender discrimination, don't you wonder if there are rules about the age of the pilot flying the airliner you're sitting in? Or whether the law permits certain restaurants to hire only female waitresses? Or why you don't see 80-year-old police officers running down the streets after purse-snatchers? These are some of the everyday instances in which we observe blatant discrimination, but it seems to make sense. So how can such discrimination be legal?

Background

The above scenarios are examples of bona fide occupational qualifications (BFOQs). A BFOQ is a defense to acknowledged discrimination, usually based on the existence of a facially discriminatory policy, such as "individuals over the age of 50 shall not be hired as police officers." Title VII of the Civil Rights Act of 1964 permits you to discriminate on the basis of "religion, sex, or national origin in those instances in which religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." This narrow exception has also been extended to age discrimination through the Age Discrimination in Employment Act. It does not, however, apply to race discrimination.

Whether a particular policy amounts to a BFOQ requires an analysis of the facts of each particular case. The Equal Employment Opportunity Commission (EEOC) has a list of BFOQs it recognizes. But just because a particular policy or rule doesn't appear on the EEOC's list doesn't mean it can't be a BFOQ. This is ultimately a factual determination for the court or jury.

In determining whether a discriminatory policy constitutes a BFOQ, you must first look at the particular job and what it requires. You must then look at the discriminatory policy and determine if it's necessary to performing the job. For example, the Federal Aviation Administration has a rule that airline pilots may not serve as captains after reaching age 60. That rule is obviously based on the probability that a pilot's skills have deteriorated with age and that the safety of the crew and passengers depends most heavily on the captain. The rule pertains only to the position of captain and doesn't prevent pilots 60 years of age or older from serving as flight engineers because age isn't a BFOQ for that position.

In claiming the BFOQ defense, the employer has the burden of proving the discriminatory policy is a valid BFOQ. You must demonstrate "plainly and unmistakably" that your discriminatory employment practice meets the terms and spirit of the Title VII exception. In other words, you must demonstrate that a discriminatory practice is reasonably related to an essential operation of your business. There is no requirement that formal studies be conducted to ascertain the need for a BFOQ. Such a qualification can be demonstrated through expert witnesses, empirical data, or just plain common sense.

BFOQs in age discrimination claims

The courts have developed a two-step test for analyzing BFOQ defenses in dealing with policies that bar a certain age group from a job. You must show either (1) there is a substantial basis for believing that all or nearly all employees above a certain age lack the qualifications for the position in question or (2) that reliance on an age classification is necessary because it's highly impractical for you to ensure by individual testing that your employees will have the necessary qualifications for the job. These BFOQs usually apply to jobs that involve driving or flying or physically demanding jobs.

BFOQs in gender discrimination claims

While BFOQs related to gender discrimination don't have a specific two-step test, the analysis does require that the discriminatory practice be reasonably necessary to the normal operation of a particular business or enterprise. In other words, gender discrimination is valid only when the "essence" of the business operation would be undermined if the business eliminated its discriminatory policy.

For example, corrections facilities and mental institutions that maintain gender- segregated wards usually have rules requiring at least one staff member of the same gender as the patients to always be on duty. That policy was found to be a valid BFOQ because the privacy rights of the individual patients necessitated that a staff member of the same sex be available to assist them in using the restroom, showering, and disrobing. Another example would be the argument that the essence or identity of a restaurant is based on its exclusive employment of female bartenders and waitresses and the business would be undermined if it was forced to hire male bartenders and waiters.

Surprisingly, gender discrimination based on an employer's concern for the safety of its female employees isn't a recognized BFOQ. In one case, a battery manufacturer enacted a policy that prohibited pregnant women and women capable of bearing children from being placed in jobs involving lead exposure. The purpose of that rule was to protect against any risk of harm to fetuses that female employees might conceive. While the policy was well intended, it was found illegal because it wasn't reasonably necessary to the normal production of batteries. To put it another way, fertile women were as efficient in manufacturing batteries as anyone else.

How effective is the BFOQ defense?

The BFOQ defense is very narrowly restricted to limited instances and shouldn't be relied in most situations. In determining whether a discriminatory policy can be justified as a BFOQ, you must think about the nature of your business, the requirement of the specific job in question, and whether the discriminatory practice is necessary to preserving the normal operation and essence of your business. Would Hooters be Hooters if the person taking your drink order was a 300-pound man, or would it become a nondescript hamburger joint? Does the safe operation of a school bus reasonably require that the drivers be under age 65? Are drivers above that age more likely to get into accidents? Should male corrections officers in a female facility be limited to certain duties? Should police officers or firefighters be a certain age?

There is no single answer or test that can be applied to these various situations. Each situation must be examined individually, taking into account the many factors concerning the nature of the business, the goods or services to be provided, and the duties and responsibilities of the job in question.

James M. Sconzo is Chairman of Halloran & Sage LLP's labor and employment practice group, and represents employers in all types of labor and employment matters, ranging from drafting contracts to litigating discrimination claims.
E-mail: sconzo@halloran-sage.com

Thomas P. O'Dea, Jr., attorney with Halloran & Sage LLP has represented individuals, partnerships, corporations and municipalities in various litigation issues ranging from motor vehicle accidents to excessive force and sexual harassment claims.
E-mail: odea@halloran-sage.com

Both James and Tom are editors of the Connecticut Employment Law Letter.