Bona fide occupational qualifications
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Known as bona fide occupational qualifications (BFOQ) in US employment law and bona fide occupational requirements (BFOR) in Canadian employment law, there are some selected, few qualities or an attributes that employers are allowed to consider when making decisions on the hiring and retention of employees: qualities that would constitute discrimination when they are considered in other contexts and thus in violation of civil rights employment law. Such qualifications must be listed in the employment offering.
The law of Canada regarding bona fide occupational qualifications 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. 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."
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:
United States Code Title 29 (Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that
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.
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. (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. and Wilson v. Southwest Airlines Co.. Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant. However, there may be cases in which customer preference is a BFOQ—for example, femininity is reasonably necessary for Playboy Bunnies. 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."
- Bhinder v. CN [1985 2 S.C.R. 561]. Supreme Court of Canada (1985). Retrieved on November 15, 2006.
- Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990 2 S.C.R. 489. Supreme Court of Canada (1990). Retrieved on November 15, 2006.
- 42 U.S.C. § 2000e-2(e) (2010).
- 29 U.S.C. § 623(f)(1) (2010).
- Robinson, Russell (2007). "Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms". California Law Review 95 (1). JSTOR 20439087.
- "Diaz v. Pan American World Airways, Inc., 311 F. Supp. 559 (S.D. Fla. 1970)". Retrieved April 24, 2010.
- Wilson v. Southwest Airlines Co., 517 F. Supp. 292 (N.D. Tex. 1981).
- Wilson, 517 F. Supp. at 304.
- Wilson, 517 F. Supp. at 301 (citing dicta in St. Cross v. Playboy Club, Appeal No. 773, Case No. CFS 22618-70 (New York Human Rights Appeal Board, 1971); and Weber v. Playboy Club, Appeal No. 774, Case No. CFS 22619-70 (New York Human Rights Appeal Board, 1971).
- Wilson, 517 F. Supp. at 301 (quoting Diaz).