Both
Title VII and the
ADEA contain
bona fide occupational qualification provisions that enable an employer to make a lawful distinction based on the protected
class provided that the distinction is a
bona fide occupational qualification (“
BFOQ”).
Title VII’s
BFOQ applies only to religion, sex, or national origin and only where the protected
class is “reasonably necessary to the normal operation” of the “particular” business.
42 U.S.C. §2000e-2(e)(1).
Title VII’s
BFOQ does not include race or color. Similarly, the
ADEA’s
BFOQ applies “where age is a
bona fide occupational qualification reasonably necessary to the normal operation of the particular business.”
29 U.S.C. §623(f)(1).
Generally, whether the
BFOQ defense is available will turn on whether the decision made on the basis of the person’s religion, sex, national origin, or age is based on an occupational qualification (i.e., “objective, verifiable” qualifications that “concern job-related skills and aptitudes”) that are “reasonably necessary” to the “normal operation” of the “particular” business. See
International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991) (
Title VII BFOQ case in which U.S. Supreme Court noted that:
a) the statutory wording of the BFOQ defense “contains several terms of restriction” that indicate that the exception only reaches special situations;
b) the statutory terms, “certain, normal, and particular” favor “an objective, verifiable” requirement; and
c) the most telling term is the word “occupational[,]” which “indicates that these objective verifiable requirements must concern job-related skills and aptitudes”); Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416-17 (1985) (ADEA BFOQ case).
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
