Our day at Epcot: Food, characters and, yes, an employment-law lesson

Octopus 🐙 appetizer for the kid? Yes, please 😘// #epcot🌐 #epcotcenter #epcot #disneyworld

A post shared by Eric B. Meyer (@eric_b_meyer) on

Remember Hank the Septopus from Disney’s Finding Dory? I found his missing tentacle. And, my son ate it!

Let’s hear it for the boy!

Other highlights of Day 3 (Epcot) of the Disney sojourn with the family:

Epcot Employment Law: The “Bona Fide Occupational Qualification”

I promised you an employment-law lesson. Here it is:

Ever wish you could just hire someone based on their religion, national origin, or sex? Well, if so, you’re a jerk. Probably.

You see, making employment decisions based on these protected classes is usually unlawful. Except, when religion, national origin, or sex is a bona fide occupational qualification — also known as a BFOQ.

What is a BFOQ? Here’s how I described it back in 2015:

Title VII permits employers to hire and employ employees on the basis of sex if sex is a BFOQ reasonably necessary to the normal operation of that particular business or enterprise. For a BFOQ defense to fly, the employer-defendant has to establish that the BFOQ … is a job qualification that’s essential to the employer’s business and relates to the employee’s ability to perform the job.

The same maxim also applies to national origin and religion — but never race. Hiring based on race is always unlawful.

So, think about Epcot. Specifically, consider the World Showcase, in which 11 countries are represented to give visitors the opportunity to feel what it’s like to eat, play, and drink (but, mostly eat and drink) their way around the world (but, really, around a big lagoon). Yesterday, I had breakfast in Norway, a drink in England (ok, Mexico too, happy?), and lunch in France.

Every employee I encountered in each country was actually from that country; literally traveled overseas or across a border to get to work at Epcot. That’s a long commute! 😉 Still, while being born in Germany is not a requirement to work in Epcot’s Germany, its employees must be “culturally authentic.” Indeed, the essence of the World Showcase is to give us a truly authentic experience. So, if national origin isn’t technically a BFOQ in much of Epcot, it’s pretty darn close.

That said, if you want to hire based on certain protected classes, remember, you need to have a darn good business reason to do so; the BFOQ defense is construed very narrowly.

So, instead, here’s a pro-tip: just stick with hiring the most qualified person for the job.

Have a nice weekend.

 

Updated:
  • Andrew Bellware

    “Hiring based on race is always unlawful” — is that true even in the case of theater and film? Because actors are hired based on race (and pretty much every other protected class) all the time. Or is that the sole instance of a BFOQ for race?

    • Good question, Andrew.

      Casting someone for a movie role doesn’t involve race as a BFOQ. Rather, it’s about hiring the most qualified person for the position.

      For example, Denzel Washington was the most qualified person to play Malcolm X. And, certainly, it helped that the two look alike.

      Eric

      • Andrew Bellware

        But what makes him more qualified than, say, Daniel Day-Lewis? In practice, casting directors do explicitly put race, age, and sex in casting announcements. One might argue that those things are for the “character” not the actor but the actual race of the actor frequently ends up being a deciding factor.

        • Yes, because the race of the historical figure is a factor when considering which actor/actress is most qualified to fill the role. Using the Malcolm X example, I suppose one could quibble — a teeny, tiny quibble — about a casting announcement that limited casting to African-American actors. (Although maybe not –> http://marker.to/AnPx0t ).

          Either way, an African-American male — gender is not a BFOQ here either — would reasonably be most qualified to play Malcolm X.

          • Andrew Bellware

            (Waah! Link doesn’t work.)
            In the film/theater world “most qualified” is a mightily vague concept. 😉 And, of course, typically has involved white people playing persons of color.