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UpButton 5 PJI 3.1 | Third Circuit (US)
HB-PJI-CA03-05S0301 Download


If you find that [plaintiff] has established by a preponderance of the evidence that [defendant] [describe employment action] because of [his/her] [protected status], then you must consider [defendant’s] defense that its action was based on a bona fide occupational qualification.

To avoid liability for intentional discrimination on the basis of this contention, [defendant] must prove both of the following elements by a preponderance of the evidence:

First: The occupational qualification relied upon by [defendant] is reasonably necessary for the normal operation of [defendant’s] business.

Second: [Defendant] either had reasonable cause to believe that all or substantially all persons [in the protected class] would be unable to perform the job safely and efficiently, or that it was impossible or highly impractical to consider the necessary qualifications of each [person in the protected class]. [Defendant’s] belief should be evaluated in light of all the circumstances in the case, to determine whether it has a reasonable basis in fact.

If you find that [defendant] has proved these two elements by a preponderance of the evidence, then you must find for [defendant].

COMMENT In some cases, an employer may defend a disparate treatment claim by proving that the discriminatory treatment is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular enterprise. 42 U.S.C. § 2000e-2(e)(1) provides as follows:
(1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise… See, e.g., United Auto. Workers v. Johnson Controls, Inc., 499 U.S. 187, 204 (1991) (sex was not BFOQ where employer adopted policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding OSHA standards); Dothard v. Rawlinson, 433 U.S. 321, 335-36 (1977) (gender was BFOQ for correctional counselor position where sex offenders were scattered throughout prison's facilities). The Johnson Controls Court held that the burden of persuasion in establishing the BFOQ defense rests with the defendant. 499 U.S. at 200.

Under Title VII, a BFOQ may relate only to religion, sex or national origin. 42 U.S.C. § 2000e-2(e)(1). There is no BFOQ defense in racial discrimination cases. 42 U.S.C. § 2000e-2(e)(1). See Ferrill v. Parker Group, 168 F.3d 468, 475 (11th Cir.1999) (no BFOQ defense to race-matched telemarketing or polling).

The Third Circuit, in Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3d Cir. 1996), analyzed the BFOQ defense, in the context of a gender discrimination case, as follows:
Under the BFOQ defense, overt gender-based discrimination can be countenanced if sex "is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise [.]" 42 U.S.C. § 2000e-2(e)(1). The BFOQ defense is written narrowly, and the Supreme Court has read it narrowly. See Johnson Controls, 499 U.S. at 201. The Supreme Court has interpreted this provision to mean that discrimination is permissible only if those aspects of a job that allegedly require discrimination fall within the " 'essence' of the particular business." Id. at 206. Alternatively, the Supreme Court has stated that sex discrimination "is valid only when the essence of the business operation would be undermined" if the business eliminated its discriminatory policy. Dothard v. Rawlinson, 433 U.S. 321, 332 (1977).

The employer has the burden of establishing the BFOQ defense. Johnson Controls, 499 U.S. at 200. The employer must have a "basis in fact" for its belief that no members of one sex could perform the job in question. Dothard, 433 U.S. at 335. However, appraisals need not be based on objective, empirical evidence, and common sense and deference to experts in the field may be used. See id. (relying on expert testimony, not statistical evidence, to determine BFOQ defense); Torres v. Wisconsin Dep't Health and Social Servs., 859 F.2d 1523, 1531-32 (7th Cir.1988) (in establishing a BFOQ defense, defendants need not produce objective evidence, but rather employer's action should be evaluated on basis of totality of circumstances as contained in the record). The employer must also demonstrate that it "could not reasonably arrange job responsibilities in a way to minimize a clash between the privacy interests of the [patients], and the non-discriminatory principle of Title VII." Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1086 (8th Cir.1980).
See also Lanning v. SEPTA, 181 F.3d 478, 500 (3d Cir. 1999) (under the defense of bona fide occupational qualification, “‘the greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications....’ ", quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 413 (1985)).

(Last Updated July 2019)

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