BFOQ Legal Provision Essay

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Bona Fide Occupational Qualification (BFOQ) is a provision in the United States employment law. This provision is a defense to recognized discrimination that is usually based on the presence of a facially discriminatory policy. An example of a facially discriminatory policy is a policy that people beyond 50 years shall not be employed as police officers. In U.S. employment discrimination law, Bona Fide Occupational Qualification policy is contained in Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act. Generally, a Bona Fide Occupational Qualification is an employment requirement that is logically necessary to the ordinary performance of a job. As a provision in employment law, Bona Fide Occupational Qualification has certain requirements and can be applied in various situations where it has considerable impacts on people.

Law of Bona Fide Occupational Qualification

Employment laws in the United States generally prohibit discrimination against people on the basis of race, nationality, religion, age, and other safeguarded statuses. However, in some situations the nature of the job itself necessitates the selection of candidates based on factors that are basically protected characteristics (FindLaw, p.1). Despite ensuring protection against discrimination, the employment laws provide these kinds of employment considerations through a provision that is known as a bona fide occupational qualification exception.

A BFOQ exception is a legal requirement that is logically necessary to the typical performance of a job such being a particular gender or age or having the capability to lift a particular amount of weight. This implies that without fulfilling such requirements, the candidate or employee would be unable to perform the job. According to Title VII of the 1964 Civil Rights Act, employers are permitted to discriminate against a candidate on the basis of nationality, religion, and sex in situations where such characteristics are reasonably necessary to the common functioning of the specific enterprise, business, or job. The Age in Discrimination in Employment Act extends this narrow exception to include discrimination based on age.

Even though nationality, sex, and religion may be regarded as bona fide occupational qualification in limited contexts, race can never meet such requirements.

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In essence, the exceptions to discrimination in employment practices can never include race as a characteristic for the discrimination. Actually, in situations where a candidate's or employee's race is important to a particular artistic objective or story, the First Amendment to the Constitution supersedes Title VII of the Civil Rights Act of 1964. Therefore, this exception is only applicable to situations where it is regarded or justified as a necessity to the normal performance and operation of a certain job or business. As a result, a defense to recognized discrimination is always dependant on the presence of a facially discriminatory policy.

In a lawsuit regarding discrimination in employment decisions and practices, an employer can invoke the bona fide occupational qualification defense. In this case, the employer must demonstrate that he/she established a policy based on the necessary requirements for the normal operation and performance of the job. The court will basically make a determination of the case based on whether the specific facts in the situation are tantamount to a bona fide occupational qualification defense. However, the defense or exception is probably illegitimate if it does not include the specific characteristics stipulated in the law.

Requirements of Bona Fide Occupational Qualification

Courts are usually very cautious to only permit very limited exceptions to the prohibition of discrimination against a safeguarded status with no exception to a case of race (FindLaw, p.1).….....

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