Discuss BFOQs and/or business necessity

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A bona fide occupational qualification (BFOQ) permits employers to use religion, age, sex, or national origin as a factor in their employment practices when it is reasonable necessary to the normal operation of that particular business under its business model (as long as it is legal). Think of the food-chain Hooters not having to hire male wait-staff or of a church or synagogue or mosque being able to hire only practitioners of its particular religious beliefs into key positions.

A business necessity, on the other hand, comes into play when an employer has a job specification that is neutral (meaning it does not call for one particular sex as a requirement) but excludes members of one sex at a higher rate than members of the other. Think of a job with the requirement to lift heavy weights repeatedly throughout the work day and how it would likely exclude women at a higher rate or how nursing has traditionally attracted more female practitioners than males to the profession (for whatever reason) which tends to skew employment ratios between males and females in that profession.

Both of these exceptions are considered legal if proven valid and necessary by the employer for the given situation.

Discuss BFOQs and/or business necessity. Do you think these situationally-dependent exceptions are fair? Why or why not? Are there any other workplace examples you have either seen personally or read about that would fall into these categories?

DISCUSSION NOTE (PLEASE READ BEFORE POSTING): These two topics can certainly be controversial at times. I want to make a couple clarifying points to help make sure we are looking at this in the right light and that we are clear on our topics.

So first, I want to challenge you to look beyond just your personal values and beliefs and try to view these policies from a purely business standpoint as well. Our values and beliefs have a place in what we personally choose to participate in, spend our own money on, or what we choose to actively support, however we also must consider that businesses must run at a certain level of efficiency and profitability in order to continue to both operate successfully and to be able to employee anyone at all (i.e. to stay open and contribute to society by providing jobs). Given that a business must meet certain requirements under the demands of their business model and industry, this is one of the lenses we should try to view these claims of exception under, whether we personally agree with the business model or services if offers or not. If the claims are for undeniable (but discriminatory) business need or valid (but unintentionally discriminatory) job requirements, they are likely either legitimate BFOQs or business necessity claims in the eyes of the courts. While some of these claims for discriminatory exceptions can seem morally or socially wrong at first glance to different people, we can usually see the valid business reasoning beyond those initial perceptions with most of the legitimate claims under these principles (by legitimate, I mean those that have been challenged in court and found valid or those whose reasoning can be judged fairly easily on its face value). Those claims that are not legitimate will hopefully, and very likely, be called out and corrected at some point in the future. Our society is certainly not afraid to seek litigation.

Finally, I want to be sure that we are not confusing the two related, but different, topics:

BFOQs are unique situations where the business claims that they have a legitimate business need to discriminate against a protected class. The concept of a business necessity claim differs from a BFOQ in that discrimination is not intentional, but instead a byproduct of a legitimate requirement of the job that unintentionally causes there to be a disparity in employee selection and/or retention rates against a protected class of employees. Under business necessity claims, the employer does not actively seek to hire only one type of employee (for instance, only males in the example cases of required heavy lifting), but instead finds themselves with a skewed concentration of that one classification of employees (again, males in the given example) because other classifications of employees (for instance, females for the given example) do not apply as often for the position because of the requirements that they may deem as an unattractive option for them (consistent heavy lifting in the example) or they find themselves unable to fully meet the demands of the position once hired and then subsequently leave the position.