Bona Fide Occupational Qualifications, otherwise known as BFOQ’s, is a defense to acknowledged discrimination. A BFOQ is a practice or policy that is essential to the operation of an employer’s business.
Title VII of the ADA permits an exception to the rule against discrimination on the basis of religion, sex or national origin where these characteristics constitute a BFOQ reasonably necessary to the normal operation of a business. This exception has also been extended to discrimination based on age through the Age Discrimination Employment Act (ADEA). This exception does not apply to discrimination based on race.
Whether a policy amounts to a BFOQ is dependent on the facts specific to a business and its objectives. This is ultimately a factual determination for a court or jury. When an employer claims the defense of BFOQ, the employer has the burden of proving the discriminatory policy is valid and must demonstrate that its discriminatory practice is related to the essential operation of the business. This can be demonstrated with expert witnesses, empirical data, surveys, or studies.
In regards to age discrimination, the BFOQs usually apply to jobs that are physically demanding. Employers are prohibited from attempting to hire within certain age groups, and ADEA regulations state that, “…when help wanted notices or advertisements contain terms and phrases such as 25 to 35, young, college student, recent college graduate, boy or girl, or others of similar nature, such a term or phrase deters the employment of older persons and is a violation of the Act,” unless a BOFQ applies.
Current law makes it clear that an employer cannot discriminate on the basis of religion, sex, or national origin. But, what if an employer had a policy to only hire “attractive” applicants and not “unattractive” ones? There are no cases holding that being “plain,” “unattractive,” or “ugly” is a disability within the meaning of the Americas with Disabilities Act (ADA.) However, it is clear that disfigurement or obesity are usually considered disabilities within the ADA. Therefore applicants who are not hired due to disfigurement or obesity may have a legitimate claim.
By means of example, In the case of Latuga v. Hooters, Inc., the Hooters of America franchise raised the BFOQ defense by stating that their “restaurant concept . . . includes certain ambience requirements and a female waitstaff wearing cutoff t-shirts, tanktops, and orange jogging shorts.” This case was settled out of court, and therefore, no determination was made as to whether Hooters asserted a valid BOFQ defense.
The law is unsettled when it comes to discriminating based on attractiveness. However Bona Fide Occupational Qualifications is a well settled exception to discrimination where it is necessary to the essential operation of a business.
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