Third Circuit Employment Law 101: What is a Bona Fide Occupational Qualification?

Ever been to a Gentlemen’s Club?


(Wait for it…)

Me neither. But I hear that dancers tend to have a few physical characteristics in common. Or how about a Chinese restaurant? Ever notice that the employees are all…Chinese? Is that why my job applications always end up in the circular file?

Ladies and gentlemen. After the jump, may I present to you: the BFOQ.

An employer in Pennsylvania, New Jersey and Delaware has an absolute defense to a Title VII discrimination claim if it proves the following two elements by a preponderance of the evidence:

  1. The occupational qualification that the employer relied upon is reasonably necessary for the normal operation of the employer’s business.
  2. The employer had reasonable cause to believe that 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. The employer’s belief should be evaluated in light of all the circumstances in the case, to determine whether it has a reasonable basis in fact.

In other words, is the BFOQ reasonably necessary to the normal operation of the business? Also, keep in mind that a BFOQ may only relate to religion, sex or national origin. Race is a no-no.

So much for my dreams of dancing at The Boom-Boom Room.

Yeah, ok. Ya got me.

More on BFOQ’s

Legal discrimination in four letters: BFOQ
Bona Fide Occupational Qualification Standards

Photo Source: Momoko