In a recent article, we discussed some ways that South Carolina employers can defend against allegations of discrimination in the workplace. In that article, we briefly mentioned the bona fide occupational qualification (BFOQ) defense. The BFOQ defense applies to allegations of discrimination under Title VII of the Civil Rights Act of 1964, and it is available under a relatively broad range of circumstances. Here is a closer look at when the BFOQ defense applies and how employers can use it to protect themselves:

What is the BFOQ Defense?

The bona fide occupational qualification defense acknowledges that certain characteristics can be relevant to individuals’ ability to perform their job duties in some cases. As the U.S. Equal Employment Opportunity Commission (EEOC) explains:

“Title VII provides an exception to its prohibition of discrimination based on sex, religion, or national origin. That exception, called the bona fide occupational qualification (BFOQ), recognizes that in some extremely rare instances, a person’s sex, religion, or national origin may be reasonably necessary to carry out a particular job function in the normal operation of an employer’s business or enterprise.”

Title VII broadly prohibits companies from making employment-related decisions based upon a job candidate’s or employee’s sex, religion, national origin, race, or color. Exceptions, such as the BFOQ defense, are intended to place limits on Title VII’s prohibitions in appropriate circumstances.

Notably, the BFOQ defense under Title VII applies only to decisions involving a job candidate’s or employee’s sex, religion, or national origin(the defense is also available in appropriate cases under the Age Discrimination in Employment Act (ADEA)). As the EEOC states, “race is not included in the statutory exception and clearly cannot, under any circumstances, be considered a BFOQ for any job.”

When Does the BFOQ Defense Apply?

Employment-Related Decisions Based on Sex

Employers must be cautious when making employment-related decisions based on sex. The EEOC has taken the position that the BFOQ exception for sex-based decisions should be interpreted “narrowly “ and that “the existence of an explicit sex-based classification constitutes prima facie showing of a Title VII violation.”

As you might expect, most sex-based discrimination claims to date have involved decisions that disadvantaged female workers. The EEOC has denied employers’ attempts to assert the BFOQ defense in cases involving claims that:

  • The employer hired a few female employees, and they could not perform the duties of the job.
  • The employer believed it was unsafe for female workers to work late-night shifts alone.
  • The employer believed that customers preferred working with male employees (companies have also been denied the protection of the BFOQ defense for refusing to hire male employees based on customer preference).
  • The employer believed that only hiring male waiters added “class” to its restaurant.
  • The employer believed that customers would not want to go to football games or on hunting trips with female employees.
  • The employer would need to construct separate facilities for female employees.

To assert the BFOQ defense successfully in response to allegations of sex-based discrimination, an employer must be able to demonstrate that both:

·        “[T]he essence of the business would be undermined by employing members of the excluded sex, and

·        “[A]ll or substantially all members of the excluded sex are unable to perform the essential duties of the job in question.”

Employment-Related Decisions Based on Religion

Similar to sex-based discrimination, the EEOC describes the BFOQ exception for religion-based employment decisions as “extremely narrow.” However, Title VII grants some additional leeway to religious organizations, educational institutions, and societies. As with sex-based discrimination, when making employment decisions based on religion, employers must ascertain whether an employee’s religion is an essential factor concerning their ability to perform the job at issue.

Employment-Related Decisions Based on National Origin

While the BFOQ defense for employment-related decisions based on national origin has existed for decades, as the EEOC notes, “neither the [EEOC] nor the courts have issued a decision squarely reaching the application of the national origin BFOQ exception to a specific fact situation.” However, the EEOC has issued guidance and provided some illustrative examples for employers.

When investigating employers accused of discriminating based on national origin, the EEOC considers several factors to determine whether the BFOQ defense applies (if an employer asserts the defense effectively). These factors include:

  • The employer’s stated reason for excluding individuals of particular national origins;
  • The essence of the employer’s business, and whether employees’ national origin is relevant to this essence;
  • Whether the essence of the employer’s business would be undermined by hiring employees from the excluded national origin(s);
  • Whether the job in question has been performed successfully by employees of the business or other similar businesses; and,
  • Whether being of a particular national origin is necessary for the successful performance of the position’s duties in question.

The factors are largely the same for matters involving sex-based and religion-based employment decisions. Since these are the factors the EEOC considers when examining employers’ assertion of the BFOQ defense in civil enforcement proceedings, these factors should guide employers’ decision-making regarding sex-based, religion-based, and national origin-based employment matters well.

Employment-Related Decisions Based on Age

Under the ADEA, employers can assert the BFOQ defense in response to age discrimination claims when such discrimination is “reasonably necessary to the normal operation of the [employer’s] business.” Oftentimes, employers will equate age with physical capability. While this can work in favor of establishing the BFOQ defense in some cases, employers must still be cautious not to exclude classes of workers based on stereotypes or assumptions.

Generally speaking, rather than excluding classes of workers from consideration based on age, sex, religion, national origin, or any other personal characteristic, employers should craft employment policies that take their specific needs into account. By focusing on the demands of a particular job rather than the characteristics of any individuals who may apply for the job, employers can significantly mitigate their risk of facing workplace discrimination allegations.

Speak with a South Carolina Employment Lawyer at Gignilliat, Savitz & Bettis, LLP

Gignilliat, Savitz & Bettis, LLP is a South Carolina employment law firm that exclusively represents employers. If you have questions or concerns about your company’s employment practices, our employment lawyers encourage you to call 803-799-9311 or contact us online to arrange a confidential consultation.