BONA FIDE OCCUPATIONAL QUALIFICATION

[BFOQ] Statutory provision that permits discriminatory practices in employment if a person’s religion, sex, or national origin is a bona fide qualification reasonably necessary to the normal operation of that particular business or enterprise. It is also permissible for an educational institution with a particular religious orientation to hire only employees of that religion. Courts have placed the burden of proof of establishing a BFOQ on the defendant and the exception provided by the BFOQ has been narrowly interpreted. In this manner it is more difficult to justify a BFOQ than to defend against a constitutionally based claim of sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The BFOQ exception would only be permitted if, in the example of a woman working at a job requiring the frequent lifting of substantial amounts of weights, the defendant proved by a preponderance of the evidence that all or substantially all females would be unable to perform safely and efficiently the duties involved in the job. Sex has been found to be a BOQ in terms of community standards of morality where, for example, a man works as an attendant in a men’s washroom and a woman works as a fitter in a lingerie establishment. Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; © 2016