Bona Fide Occupational Qualification (Bfoq) Essays -

Bona Fide Occupational Qualification (Bfoq) INTRODUCTION Title VII states that an employee cannot be treated differently because of sex unless sex is a bona fide occupational qualification (BFOQ). When used as a defense, bona fide occupational qualification (BFOQ) allows an organization to hire and employ individuals on the basis of the qualifications reasonably necessary to the normal operation of that particular business or enterprise. This paper will discuss the necessary steps employers must take in order to justify using sex as a discriminator when hiring employees and review some known cases where BFOQ was used as a defense. DEFINITIONS Sex Discrimination is traditionally defined as systematically treating one sex differently from the other. However, discrimination can be further defined by breaking it down into two areas: disparate treatment and disparate impact. Disparate treatment is more commonly known as outright discrimination. It is treating an individual differently than what is fair and just because of race, sex religious beliefs or any other differentiating factor. Disparate impact is discrimination towards a group of employees who are members of the protected class. The protected class is that group of individuals who are protected from discrimination by a federal, state or local statute (Sovereign, p.352). Everyone is a member of at least one protected class, because gender is a protected class. In Title VII litigation, where the employees neutral practice causes the disparate impact, no showing of intent to discriminate is necessary for liability (Kovacic-Fleischer, p.858). In a Title VII case, once a plaintiff has made a prima facie disparate impact case, a defendant can defend by proving that the neutral practice is a business necessity. If the defendant is able to establish the defense, the plaintiff still has the opportunity to prove that the defendant could achieve the business necessity in a less discriminatory manner. The Bona Fide Occupational Qualification (BFOQ) is contained in Title VII of the Civil Rights Act of 1964. Under this title, employment in particular jobs may not be limited to individuals of a particular sex, religion, or national origin unless the employer can show that one of these factors is an actual and necessary qualification for performing the job. BFOQ is usually decided on a case-by-case basis. Race is never a BFOQ. When BFOQ is used as a defense, the employer admits sex discrimination but under the terms of the statute it is justified (Sovereign, p.91). The Supreme Court has determined that the BFOQ exception is intended as a narrow exception to the prohibition of sex-based discrimination (Hawke, p.58). Title VII of the Civil Rights Act of 1964 states that it is unlawful for an employer to refuse to hire, discharge or discriminate against an individual because of race, color, religion, sex or national origin. Under Title VII sex discrimination is not unlawful if BFOQ can be proven as necessary for that position. PROVING DISCRIMINATION Employee Position Employees alleging discrimination must attempt to prove a prima facie case. Prima facie means that before a person can go to court, it must be shown that a wrong has been committed by stating certain facts (Sovereign, p.38). The employee must show that he is a member of a protected class and has suffered an adverse employment action. An adverse employment action is anything the employer does which affects the employees job and is not positive. For example, if an applicant applies for an open position that he is qualified for, is rejected, and that position remains open and the employer continues to seek applicants, this could be discriminatory treatment. Adverse actions can range from firing, failure to hire, or failure to promote. The employee then has to show that the employers reason for the adverse action was not legitimate. This is known as showing that the employers reason for not hiring was pretext. Once pretext is proven, then the court would presume that the adverse action was illegal. In some instances, this may not be enough. The employee may still have to provide evidence of discrimination. Employers Position When an employer is accused of discrimination, he must state that there was a legitimate reason for that adverse employment action. The employer may chose from many defenses. One defense may be BFOQ. In using BFOQ as a defense, the employer must show reasonable necessity