A bona fide occupational qualification is essentially a defense to discrimination, usually based on the existence of a specific policy set forth by the company. For example, a bona fide occupational qualification may be the fact that individuals over the age of 50 cannot be hired as police officers. This qualification permits companies to discriminate based on religion, gender, age, or national origin in those circumstances in which it is deemed reasonable necessary for the operation of the specific company. However, this exception doesn’t apply to discrimination based on race.

While discrimination against people based on race, religion, gender, national origin, age, or another protected status is generally prohibited under Title VII of the Civil Rights Act of 1964, this qualification acts as an exception to the rule. Therefore, at times, it only makes sense to allow employers to choose specific candidates based on certain genders, national origin, religion, and/or age.

In order for employers to use this defense, they must evidence that roughly all members of the excluded class cannot perform the job duties properly. This can include hiring airline pilots at a certain age or a Hebrew school only hiring Jewish teachers.

Courts are very careful when looking at this exception that goes against a protected status. In turn, employers should also be incredibly careful when choosing how and when they will discriminate. Employers will want to avoid legal suits at all costs. For example, if you own a clothing store and wish to hire only young people to attract that type of demographic, you cannot refuse to interview older individuals for this reason. The duties of a salesperson are broad duties that cannot be applied to a specific demographic.

Why Does the Exception Include National Origin But Not Race?

While these two protections may seem alike, they are in fact wholly unique. The term “race” refers to someone’s physical characteristics, including skin color, hair type, eye shape, etc. National origin refers to the country or geographic region someone comes from.

Examples

  • Airline pilots- mandatory retirement age means that employers can discriminate based on age since hiring older pilots may be less safe.

  • Gender specific clothing designers- such designers can hire based on gender as clothes for men should be advertised on men, and female clothes will be worn by females.

  • Religious establishments – a priest must be of a certain religion and a rabbi must be Jewish. Therefore, hiring based on religion is a must.

  • An airline was previously allowed to hire only pilots of a certain religion because one of the countries that the airline flew over prohibited the presence of people outside of the specific religion.

  • Requiring a job applicant to be bilingual is not discrimination.

  • Note that hiring only female flight attendants or male automobile mechanics is not a qualified exception.

  • A specific example of this exception is with regard to the Borgata Casino in Atlantic City, NJ. The casino hired cocktail serves of a certain weight. When people began complaining based on gender discrimination, the casino defended its policy indicating that it hadn’t discriminated against gender whatsoever but instead hiring only those men and women of a certain weight to help sell the sex appeal and glitz of the casino itself. When the court got involved, it actually sided with the casino indicating that no discrimination had taken place, and that, in this case, it was rather important to hire only those employees who are physical fit and attractive.

  • Another specific example involves Southwest Airlines. In 1981, several male applicants filed a lawsuit against the company for gender discrimination. During that time, the company only hired attractive female flight attendants. In fact, the company saw a huge profit after choosing to hire only attractive females. However, the court didn’t agree with such discrimination as it specifically noted that the position can easily be filled with men who can perform the same job duties as their female counterparts.

History of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 makes it illegal for any employer to refuse to hire, terminate, or otherwise reduce compensation to employees based on race, religion, gender, and national origin. After the law was enacted, it was eventually expanded to include discrimination based on someone’s age. While the Act itself prohibits such discrimination, it also includes for permissible discrimination, which can be evidenced in the bona fide occupational qualification exception. Some positions simply require people of a certain age, religion, background, or gender.

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