Bona Fide Occupational Qualification (BFOQ)

Bona Fide Occupational Qualification (BFOQ)

A bona fide occupational qualification (BFOQ) is an extremely narrow but legally allowed exception to Equal Employment Opportunity (EEO) laws. With a BFOQ, some employers can make hiring decisions based on factors that include age, sex (gender), religion, and national origin. However, the employer has to demonstrate how these factors impact a person’s qualification for performing a job. 

For legal purposes, the BFOQ must relate to the necessary operations of a particular business and the essential job functions required. 

In the U.S., both the Age Discrimination in Employment Act of 1967 (ADEA) and Title VII of the Civil Rights Act of 1964 contain provisions for BFOQ. Within Title VII, a statutory provision called CM-625 Bona Fide Occupational Qualifications details what situations are exceptions to the law’s prohibition of discrimination based on religion, sex, or national origin. ADEA has a BFOQ exemption for age because of safety concerns that exist in certain jobs. 

An employer can use religion as a BFOQ only if the nature of their business can be undermined by hiring someone who isn’t a member of a specific religion. For example, a priest in the Roman Catholic Church is required to be Catholic. However, being Catholic would not usually be considered a BFOQ for janitors or cooks who go to work for the church. 

Examples: 

One of the most commonly seen examples of a bona fide occupational qualification in practice is in theater, film, and television roles. If a role specifies that a character looks a certain way, studios are legally protected in hiring an actor who can show the most genuineness or authenticity in that role. This protection of artistic works also extends to both race and age in certain situations, and the First Amendment overrides Title VII of the Civil Rights Act of 1964. For example, for a movie about Dr. Martin Luther King, Jr., studios have the legal right to hire a male African American actor. 

Another example is a psychiatric hospital requiring minimally one security treatment assistant of the same gender to be assigned to a ward. Courts will generally grant the hospital bona fide occupational qualification because of privacy laws, as evident in 1992’s Jennings v. New York State Office of Mental Health.

The third most common example of BFOQ is a mandatory retirement age for bus drivers and airline pilots due to safety concerns because after the age of 60, physical and mental functions start breaking down. This scenario was settled in 1987’s Rasberg v. Nationwide Life Insurance Company.