When is it legal for an employer to discriminate in their hiring practices based on a Bona Fide Occupation Qualification?

Author: Stephanie Scott, Associate Member, University of Cincinnati Law Review

Although it is illegal for an employer to discriminate against an employee based on the individual’s sex, Title VII of the Civil Rights Act of 1964 allows employers an exception when employment discrimination is based on a “bona fide occupational qualification” (BFOQ). Courts have upheld discrimination on the basis of sex for some BFOQ that impact employee safety, but even then exceptions apply. Companies have recently argued that the BFOQ exception should apply to sex-discrimination for sex appeal or entertainment purposes. The Supreme Court has held, however, that female sex appeal is not a BFOQ exception unless it is necessary to the business of a company.[1] Courts should continue to read the BFOQ exception narrowly and allow companies to discriminate for the purpose of safety, but not marketing campaigns or competitive advantages.

Bona Fide Occupational Qualifications

Under Title VII of the Civil Rights Act (“Title VII”), it is an unlawful employment practice for an employer to fire or fail to hire any individual because of such individual’s race, color, religion, sex or national origin.[2] However, Title VII permits sex-based discrimination where sex is a BFOQ for the job.[3] Sex is considered a BFOQ if it is reasonably necessary to the normal operation of the employer’s particular business.[4] Normal operation encompasses ethical, legal, and business concerns about the effects of an employer’s activities on third parties.[5] For example, in International Union v. Johnson Controls, the Court held that a battery manufacturing company could not discriminate against females of child-bearing age because unconceived fetuses are neither customers nor third parties whose safety is essential to the business of battery manufacturing.[6] In order to qualify as a BFOQ, a job qualification must relate to the “essence” or “central mission” of the employer’s business.[7] Courts emphasize that the BFOQ exception is written narrowly, and the Supreme Court has read it as a narrow defense to otherwise unlawful employment activity.[8] The BFOQ exception is “meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.”[9]

Courts have recognized a number of different reasons when sex could qualify as a BFOQ such as privacy and safety reasons.[10] However, it is unclear whether sex could qualify as a BFOQ for entertainment or sex appeal purposes.

BFOQ’s for Safety

In Dothard v. Rawlinson, a female applicant sought employment with the Alabama Board of corrections as a prison guard, and was rejected.[11] She brought suit under Title VII challenging the employer’s BFOQ policy excluding female guards from “contact areas” of male maximum security prisons.[12] Alabama’s prisons are segregated on the basis of sex, and the four male penitentiaries are maximum-security institutions.[13] A prison guard’s primary duty is to maintain security and control of the inmates.[14] The Court found that the environment of the Alabama prisons was “peculiarly inhospitable” for human beings of either sex.[15] The conditions of the prisons were characterized by “rampant violence” and a “jungle atmosphere.”[16] Further, because of inadequate staff, there was no attempt to segregate the prisons according to their level of dangerousness.[17] The Court reasoned that a woman’s ability to maintain order in a male, maximum-security prison in Alabama would be “directly reduced by her womanhood.”[18] Therefore, being a male was a bona fide occupational qualification for the prison guard job.[19]

In International UAW, a battery manufacturer excluded females of childbearing age from jobs involving lead exposure.[20] The Court emphasized that the BFOQ safety exception was limited to instances in which sex or pregnancy interfered with the employee’s ability to perform the job.[21] Because fertile females could participate in the manufacture of batteries as efficiently as non-fertile females or males, the employer’s moral and ethical concerns about the welfare of unborn children could not establish a BFOQ of female sterility.[22] Safety concerns could only be based on the safety of indispensable third parties, such as customers, clients, guests, patients, coworkers, and the public. Indispensable third parties did not include potential fetuses.[23] The Court held that “[d]ecisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire those parents.”[24]

BFOQ’s for Sex Appeal

In Wilson v. Southwest Airlines Co.,[25] a class of male job applicants challenged Southwest Airlines’ policy against hiring male flight attendants and ticket agents.[26] Southwest conceded that its refusal to hire males was intentional.[27] However, Southwest argued that the BFOQ exception to Title VII’s ban on sex discrimination justified its female-only hiring policy.[28] Southwest reasoned it may discriminate against males because its attractive female flight attendants “personify the airline’s sexy image and fulfill its public promise to take passengers skyward with ‘love.’”[29] Southwest therefore attempted to make female sex appeal a quality of successful job performance. The court held that the airline was “not a business where vicarious sex entertainment is the primary service provided.”[30] The customer preference for female-only flight attendance was not so strong that male passengers would cease doing business with Southwest if they were to hire male flight attendants.[31] Therefore, Southwest failed to satisfy a “business necessity requirement, without which customer preference may not give rise to a BFOQ for sex.”[32] Therefore, the court rejected Southwest’s BFOQ defense, holding female sex appeal was not a BFOQ.[33]

What should be an acceptable BFOQ exception?

Because Title VII was passed with a purpose to prohibit sexual discrimination, courts have appropriately read the BFOQ exception as a narrow one. Companies should not be able to use the exception to enhance a marketing campaign or to give themselves an unfair competitive advantage. However, safety should continue to be a legal justification for a company refusing to hire an applicant on the basis of sex.

There are certain jobs that are better served by a male or female workers, but where sex is not a necessity. Title VII eliminated the judgment of individual businesses on who would “best serve” a specific job for the overarching public policy of prohibiting employment discrimination. If companies could violate Title VII by promoting a certain gender or ethnicity as part of their business image, it would encourage them to do so and frustrate the purpose of the statute. In order to determine whether intentionally hiring or rejecting only those applicants from a particular protected class is a business necessity, one should ask whether the majority of the company’s current customers would stop frequenting the business if they were to hire employees of a different identity. Because the majority of Southwest’s customers would continue to take their flights even with male flight attendants, the case was correctly decided.

In contrast, jobs that necessarily require a certain gender in order to protect the safety of the employees and necessary third parties should continue to fall within the BFOQ exception. Having a female guard in an all-male maximum security prison could pose a serious and obvious threat, not only to the employee but also other employees and the prisoners. However, this does not mean that an employer should be able to discriminate simply because a job could be more safely completed by a member of the opposite sex. The safety exception is limited to instances in which sex “actually interferes with the employee’s ability to perform the job.”[34] The BFOQ is not so broad that it transforms a social concern into an essential aspect of a job. While some jobs may have certain aspects that are more dangerous for females than males, such as police officers, if females can still effectively do the job the employer should not discriminate against them for their “own good.”

The safety concern, while a valid justification for a BFOQ exception, should be limited to those third parties directly affected by the job. It would be unfair for companies to worry about potential third parties when classifying gender as a BFOQ. Including safety of potential third parties like unborn fetuses would potentially lead to a burdensome number of suits by companies that may wish to consider these numerous potential third parties in their hiring determinations. Further, if companies begin discriminating against women of child bearing age for the safety of their “future children,” it could discourage women from working any physically demanding profession. Creating a potential fear in women that working any dangerous jobs could harm their future children would cause a large disproportion in the labor market.

Conclusion

By focusing on the central purpose of a business and interpreting the BFOQ exception narrowly, courts have properly considered whether the gender of an employee is essential to performing the job at hand. Courts have deemed the safety of necessary third-parties, such as customers, as part of a business’s central purpose in determining whether they can discriminate based on sex. By only considering third parties directly affected by a business and not potential parties, courts have also narrowed the exception. Further, determining that a company such as Southwest is a flight and not an entertainment company, courts have limited gender discrimination for sex appeal purposes.  Because one of the central purposes of Title VII was to prohibit employment discrimination, courts should continue to read the BFOQ exception narrowly. A company should be able to discriminate on the basis of gender for the safety of directly affected third parties or for their essential business functions, but not for a marketing campaign or an unfair advantage.

[1] Wilson v. Sw. Airlines Co., 517 F. Supp. 292 (N.D. Tex. 1981)

[2] 42 USCS § 2000e-2 (Lexis Nexis, Current through PL 114-115, approved December 28, 2015, with a gap of PL 114-95).

[3] “An employer ‘may discriminate on the basis of 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 enterprise.” 42 USCS § 2000e-2(e)(1); See also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[4] Int’l Union v. Johnson Controls, 499 U.S. 187, 195 (1991).

[5] Id.

[6] Id. at 203.

[7] Id.

[8] Id. at 201.

[9] Dothard v. Rawlinson, 433 U.S. 321, 334 (1977).

[10]Id. at 321.

[11] Id. at 323.

[12] Id.

[13] Id. at 326.

[14] Id.

[15] Id. at 334.

[16] Id.

[17] Id. at 335.

[18] Id.

[19] Id. at 336.

[20] Int’l Union v. Johnson Controls, 499 U.S. 187, 192 (1991).

[21] Id. at 204.

[22] Id. at 206.

[23] Id.

[24] Id.

[25] 517 F. Supp. 292 (N.D. Tex. 1981)

[26] Id. at 293.

[27] Id.

[28] Id.

[29] Id.

[30] Wilson, 517, F. Supp. at 302.

[31] Id.

[32] Id.

[33] Id. at 304.

[34] Int’l Union v. Johnson Controls, 499 U.S. 187, 204 (1991).

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