July 15, 2010

BFOQ Defined: Can You Exclude Women from Certain Jobs?

Can you claim a bona fide occupational qualification (BFOQ) to exclude women from jobs that require heavy lifting or impose safety risks? In most cases, the answer is “probably not,” unless you want to face a law suit for discrimination against hiring women.

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Q: We have several job positions that require a lot of heavy lifting, working all hours of the evening, and going into locations that are considered a little rough. Can we claim a BFOQ for these positions and only hire men to perform them?

A: The standard for a bona fide occupational qualification (BFOQ) for sex is difficult to meet. Normally, according to state and federal discrimination laws, and bonafide occupational qualification law, you cannot refuse to hire or promote workers because of their sex, among other protected class criteria.

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(Download free Equal Employment Opportunity model policy, including HR best practices and legal background.)

However, a very limited exception applies for certain protected classes. According to Title VII of the Civil Rights Act, if you can show that the job requires an individual to be of a particular sex, religion, or national origin, an employment decision based on these criteria may be lawful if the requirement meets the bona fide occupational qualification (BFOQ) standard. For example, sex may be a BFOQ if necessary for authenticity or genuineness, as for an actor or actress. However, sex is not a BFOQ if it is based on customer or coworker preferences. Generally, to be considered nondiscriminatory, the BFOQ must be reasonably necessary to the operation of the business.

The BFOQ standard, however, is difficult to meet and its use is scrutinized carefully by the courts and the Equal Employment Opportunity Commission (EEOC). For example, in Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), the Supreme Court found that the employer did not establish a BFOQ when it prohibited women capable of bearing children from working in jobs involving lead exposure. The employer instituted the ban because high levels of lead exposure may increase the risk of damage to a fetus. The Court noted that the employer engaged in discrimination based on sex because men were not excluded from those jobs even though male reproductive abilities also were at risk. The Court ruled that to qualify as a BFOQ, the job qualification must relate to the “essence” of the business. Since fertile women can participate in the manufacture of batteries as efficiently as anyone else, no BFOQ was established.

Similarly, in Ersol v. Milwaukee County, 539 F.3d 573 (7th Cir. 2008), the court found that the policy of the County’s juvenile detention center, which required that each unit be staffed by at least one officer of the same sex as the detainees, discriminated against female officers because there were far more male units than female units. The policy therefore had the effect of reducing the number of shifts available to female officers and the County could not show that its policy was reasonably necessary to promote security and privacy of the inmates.

Here are examples of cases finding that a BFOQ was appropriate:

In Everson v. Mich. Dep’t of Corr., 391 F.3d 737 (6th Cir. 2004), cert. denied, 564 U.S. 825 (2005), a state corrections department did not violate Title VII by barring males from certain positions within its female prison system. The court found that gender was a BFOQ for the correctional and residential unit officer positions since the requirement would increase security, decrease sexual abuse, and protect the privacy rights of female inmates.

And, in Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996), a hospital for emotionally disturbed and sexually abused children established that its requirements for at least one staff member of each gender on every shift was a BFOQ because of therapeutic and privacy concerns about patients.

You also may treat applicants and employees differently as long as the differences are based on nondiscriminatory criteria, such as the quantity or quality of production, a bona fide seniority or merit system, or different work locations, and not on the employees’ sex. For example, in Lanning v. SEPTA, 308 F.3d 286 (3d Cir. 2002), the employer’s aerobic capacity requirement for transit police officers had a disparate impact on female candidates but was not considered sex discrimination because the requirement was an accurate measurement of the minimum qualification necessary for successful performance of the job.

As the above cases demonstrate, BFOQs can only be used in very limited circumstances. Based on the description of the job provided, a BFOQ may not be available for this position. Realize, too, that any use of a BFOQ is likely to generate intense scrutiny from the EEOC since the requirement will exclude women from these jobs. So to be safe, make sure you consult legal counsel before invoking a BFOQ.

(Download free Equal Employment Opportunity model policy, including HR best practices and legal background.)

A better approach may be to focus more on the physical requirements and the safety conditions in the hiring process to ensure that only qualified applicants are considered for these positions. For example, you should specify what the lifting or other physical requirements are and explain exactly where the job locations are so that applicants are aware of what the job entails. By providing this detailed information, you also may find that candidates who are not able to meet these challenges will not pursue the job.

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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