In employment law, a bona fide occupational qualification (BFOQ) (US) or bona fide occupational requirement (BFOR) (Canada) or genuine occupational qualification (GOQ) (UK) is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees—a quality that when considered in other contexts would constitute discrimination in violation of civil rights employment law. Such qualifications must be listed in the employment offering.[ citation needed ]
The law of Canada regarding bona fide occupational requirements was considered 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. [1] In 1990, in deciding another case, the Supreme Court of Canada amended the Bhinder decision: "An employer that has not adopted a policy with respect to accommodation and cannot 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." [2]
In employment discrimination law in the United States, both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act contain a BFOQ defense. The BFOQ provision of Title VII provides that:
[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, 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 ... [3]
United States Code Title 29 (Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that
It shall not 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. [4]
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, a religious school may lawfully require that members of its faculty be members of that denomination, and may lawfully bar from employment anyone who is not a member. Fire departments can require firefighters to be able to lift a given weight to demonstrate that they will be able to carry fire victims out of a burning building. Most militaries around the world have a weight and personal fitness standard to help make sure troops are able to carry physically demanding missions.
While religion, sex, or national origin may be considered a bona fide occupational qualification in narrow contexts, race can never be a BFOQ. However, the First Amendment will override Title VII in artistic works where the race of the employee is integral to the story or artistic purpose. A good example would be if there was a biographical film of Martin Luther King Jr., it would be integral that the lead actor must be an African American male. [5] (This consideration is not limited to race.)
Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. 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.
Mere customer satisfaction, or lack thereof, is not enough to justify a BFOQ defense, as noted in the cases Diaz v. Pan Am. World Airways, Inc. [6] and Wilson v. Southwest Airlines Co. [7] Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant. [8] However, there may be cases in which customer preference is a BFOQ – for example, femininity is reasonably necessary for Playboy Bunnies. [9] Several breastaurants like Hooters have also used such requirements of feminity and female sex appeal under a BFOQ defense. [10] Customer preference can "'be taken into account only when it is based on the company's inability to perform the primary function or service it offers,' that is, where sex or sex appeal is itself the dominant service provided." [11]
While certain other laws don't contain a BFOQ defense, the general import of such a defense is often recognized. For example, the Americans with Disabilities Act (ADA) does not contain a BFOQ defense; nonetheless, according to the United States Equal Employment Opportunity Commission, "an employer may defend the use of a qualification standard that screens out an individual on the basis of disability by showing that the standard is job related and consistent with business necessity." [12]
In UK employment discrimination law, a GOQ exists when the nature of a particular job causes the sex or gender of an applicant to become a reasonable cause for choosing one applicant over another. GOQs are a special case exception to the Employment (Sex Discrimination) Act 2000, defined in Section 9 of this act.
There are eight possible types of reason for claiming a GOQ in advertising a particular job:
In each of these, reasons must be specific and absolute, not based on stereotypes or generalised assumptions.
The Civil Rights Act of 1964 is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, and national origin. It prohibits unequal application of voter registration requirements, racial segregation in schools and public accommodations, and employment discrimination. The act "remains one of the most significant legislative achievements in American history".
In United States labor law, at-will employment is an employer's ability to dismiss an employee for any reason, and without warning, as long as the reason is not illegal. When an employee is acknowledged as being hired "at will", courts deny the employee any claim for loss resulting from the dismissal. The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave their job without reason or warning. The practice is seen as unjust by those who view the employment relationship as characterized by inequality of bargaining power.
The Equal Pay Act of 1963 is a United States labor law amending the Fair Labor Standards Act, aimed at abolishing wage disparity based on sex. It was signed into law on June 10, 1963, by John F. Kennedy as part of his New Frontier Program. In passing the bill, Congress stated that sex discrimination:
The rights and duties for employees, labor unions, and employers are set by labor law in the United States. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "organized in the corporate or other forms of ownership association". Over the 20th century, federal law created minimum social and economic rights, and encouraged state laws to go beyond the minimum to favor employees. The Fair Labor Standards Act of 1938 requires a federal minimum wage, currently $7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half overtime pay. There are no federal laws, and few state laws, requiring paid holidays or paid family leave. The Family and Medical Leave Act of 1993 creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed Social Security, but the Employee Retirement Income Security Act of 1974 requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The Occupational Safety and Health Act of 1970 requires employees have a safe system of work.
The Age Discrimination in Employment Act of 1967 is a United States labor law that forbids employment discrimination against anyone, at least 40 years of age, in the United States. In 1967, the bill was signed into law by President Lyndon B. Johnson. The ADEA prevents age discrimination and provides equal employment opportunity under the conditions that were not explicitly covered in Title VII of the Civil Rights Act of 1964. The act also applies to the standards for pensions and benefits provided by employers, and requires that information concerning the needs of older workers be provided to the general public.
Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.
Employment discrimination is a form of illegal discrimination in the workplace based on legally protected characteristics. In the U.S., federal anti-discrimination law prohibits discrimination by employers against employees based on age, race, gender, sex, religion, national origin, and physical or mental disability. State and local laws often protect additional characteristics such as marital status, veteran status and caregiver/familial status. Earnings differentials or occupational differentiation—where differences in pay come from differences in qualifications or responsibilities—should not be confused with employment discrimination. Discrimination can be intended and involve disparate treatment of a group or be unintended, yet create disparate impact for a group.
Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SCR 489, is a leading human rights law decision of the Supreme Court of Canada. The Court expanded on the concept of accommodation up to undue hardship first established in Ontario (Human Rights Commission) v Simpsons-Sears Ltd, [1985] 2 SCR 536 and provided a set of factors to consider when evaluating undue hardship.
Employment discrimination law in the United States derives from the common law, and is codified in numerous state, federal, and local laws. These laws prohibit discrimination based on certain characteristics or "protected categories." The United States Constitution also prohibits discrimination by federal and state governments against their public employees. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law, including the Title VII of the Civil Rights Act of 1964. Federal law prohibits discrimination in a number of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.
Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986), reversed a lower court's decision and stated that the lower court should not have heard the case until after the Ohio Civil Rights Commission had concluded their investigation. The commission argued that the non-renewal and firing constituted unlawful sex discrimination, while the school argued that this was an ecclesiastical matter not suitable for review by civil authorities.
Disparate treatment is one kind of unlawful discrimination in US labor law. In the United States, it means unequal behavior toward someone because of a protected characteristic under Title VII of the United States Civil Rights Act. This contrasts with disparate impact, where an employer applies a neutral rule that treats everyone equally in form, but has a disadvantageous effect on some people of a protected characteristic compared to others.
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), was a United States Supreme Court landmark case in which the Court held that under Title VII of the Civil Rights Act of 1964, an employer may not, in the absence of business necessity, refuse to hire women with pre-school-age children while hiring men with such children. It was the first sex discrimination case under Title VII to reach the Court.
Dothard v. Rawlinson, 433 U.S. 321 (1977), was the first United States Supreme Court case in which the bona fide occupational qualifications (BFOQ) defense was used.
The Paycheck Fairness Act is a proposed United States labor law that would add procedural protections to the Equal Pay Act of 1963 and the Fair Labor Standards Act as part of an effort to address the gender pay gap in the United States. A Census Bureau report published in 2008 stated that women's median annual earnings were 77.5% of men's earnings. Recently this has narrowed, as by 2018, this was estimated to have decreased to women earning 80-85% of men's earnings. One study suggests that when the data is controlled for certain variables, the residual gap is around 5-7%; the same study concludes that the residual is because "hours of work in many occupations are worth more when given at particular moments and when the hours are more continuous. That is, in many occupations, earnings have a nonlinear relationship with respect to hours."
In the United States, all states have passed laws that restrict age discrimination, and age discrimination is restricted under federal laws such as the Age Discrimination in Employment Act of 1967 (ADEA). However, it is worthy of note that age discrimination is still an issue in employment as of 2019.
County of Washington v. Gunther, 452 U.S. 161 (1981), is a United States labor law case concerning discrimination and the lower standards of protection for gender pay because of the Bennett Amendment in Title VII of the Civil Rights Act of 1964, §703(h).
United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), was a decision by the Supreme Court of the United States establishing that private sector policies prohibiting women from knowingly working in potentially hazardous occupations are discriminatory and in violation of Title VII and the Pregnancy Discrimination Act of 1978. The case revolved around Johnson Controls' policy of excluding fertile women from working in battery manufacturing jobs because batteries contain high amounts of lead, which entails health risks to people's reproductive systems and fetuses. At the time the case was heard, it was considered one of the most important sex-discrimination cases since the passage of Title VII.
Authored by State Senator Hannah-Beth Jackson, the California Fair Pay Act is an amendment to the existing California labor laws that protects employees who want to discuss about their co-workers' wages as well as eliminating loopholes that allowed employers to justify inequalities in pay distribution between opposite sexes. The bill is an extension of the California Equal Pay Act of 1949, which was originally intended to enforce equal pay.
Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987), is a United States Supreme Court case in which the court decided that the exemption of religious organizations from the prohibition of religious discrimination in employment in Title VII of the Civil Rights Act is constitutional. Appellee Arthur Frank Mayson worked for 16 years in an organization operated by the Church of Jesus Christ of Latter-day Saints. He was terminated from employment when he "failed to qualify for a temple recommend, that is, a certificate that he is a member of the Church and eligible to attend its temples." He filed suit in district court, arguing that his firing violated discrimination on the basis of religion in Title VII of the Civil Rights Act. The district court agreed. The case was appealed directly to the Supreme Court. The Supreme Court reversed, holding that Title VII's exemption of religious organizations from the prohibition on religious discrimination, even in secular activities, did not violate the First Amendment.
Wilson v. Southwest Airlines Co., 517 F. Supp. 292, is a US employment discrimination law case concerning bona fide occupational qualifications. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on race, color, religion, sex, or national origin. The law contains an exception for bona fide occupational qualifications, allowing businesses to hire on the basis of religion, sex, or national origin in instances where it is a qualification reasonably necessary for their operations. Bona fide occupational qualifications are qualities or attributes that employers are allowed to consider when hiring employees, which would otherwise be considered illegal discrimination in other circumstances.
