Have you ever wondered how football became an all male sport? Moreover, places such as hooters, are allowed to have all female servers? Well, it is because of an exception in Title VII called, Bona Fide Occupational Qualification (BFOQ). Title VII states that "it is unlawful employment practice for an employer to fail, or refuse to hire or to discharge any individual, because of such individual's race, color, religion, sex, or national origin"(Wikipedia). In addition, the law further states, that employers can use the legal discriminatory practice of BFOQ, which is hiring based on national origin, gender, religion, and age, if it is necessary as a business necessity.
On the other hand, countless complaints are filed with the Equal Employment Opportunity Commission (EEOC) for claims of discrimination based on these practices. Nevertheless, Title VII (BFOQ) protects employers, if they present strong arguments to the courts. Therefore, in this paper, I will give a description of BFOQ, the pressures that triggered it; How BFOQ fits into EEO, and the pros and cons of BFOQ.
Bona Fide Occupational Qualification (BFOQ) falls under the Title VII 1964 Civil Rights Act, and is a "quality or and attribute that employers are allowed to consider, when making decisions on the hiring and retention of employees" (Wikipedia). Some attributes considered for BFOQ maybe, gender (sex), age, national origin, and reglion. On the other hand, no employer should ever use race as a determining factor when hiring, firing, or promoting and employee. In contrast, these qualities that when considered in other contexts, would be considered discriminatory, thus violating civil rights employment law (Wikipedia). Nevertheless, employers must show that their BFOQ is lawful and the burden of proof falls on the employer.
For example, in 1977 the U.S District Court for the Middle District of Alabama declared in the case of Dothard v. Rawlison, that a young woman that applied for employment at an correctional facitlity, as a correction counselor (prison guard), should be allowed to apply for the job. She was rejected because she failed to meet the Alabamas statutory 120 pound weight requirement, which also establishes a height requirement of 5 feet and 2 inches. The court ruled that Alabamas statutory standard would exclude over 4% of the female population, but less than 1% of the male population.
Therefore, the court found that the such standards are a case of unlawful sex discrimimation, and sterotyped characterizations of the sexes, and rejcted the prisons defense of BFOQ. Furthermore, the court cited that being male was not such a qualification for the job of a correctional counselor, in a contact position, in an Alabama male maximum security penetentiary.
Consequently, this case shows that the employer must establish not just any reason, but a business necessity for BFOQ. For instance, there are three elements that an employer must use to determine their defense in using BFOQ. First, "there must be a direct relationship between sex(gender) and the ability to perform the duties of the job. Second, the BFOQ must relate to the essence or central mission of the employers business. Last, there must be no less restritctive or reasonable alternative. With this purpose in mind, once an employer shows that they have met these requirements, then they may be able to submit a qualified case of BFOQ" (Wikipedia).
Meanwhile, there were pressures that triggered BFOQ. It began with such cases as the one in 1908, when the Supreme Court of the State of Oregon decided in the case of Muller v. Oregon that, a woman's physical structure and the performance of maternal functions, place her at a disadvantage which justifies a difference in legislation in regard to some of the burdens which rest upon her. Therefore, it was the decision of the court to not allow women to work in certain work environments more than the ten hours a day, and the court ruled that it is not unconstitutional so far as respects of laundries.
In fact, there were many proponents to this decision and the case sparked a women's right movement. Next, during the Civil Rights Act of 1964, Howard W. Smith a Virginia Democrat who chaired the House Rule Committee, opposed civil rights for blacks, but supported women issues. However, Alice Paul, a leader from the suffrage movement in 1917, urged Smith to include sex as a protected category in the Civil Rights Act of 1964.
Thereafter, in the final legislation, in Section 703 (a) it then became unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges or employment, because of such individual's race, color, religion, sex, or national origin"(National Archives).
The final amendment to the bill, also allowed sex to be a consideration when it is a bona fide occupational qualification for the business necessities of the job. In addition, because of Title VII, the amendment created the Equal Employment Opportunity Commission (EEOC) to implement the law. However, since the EEOC existence, employers continue to struggle with the interpretation of BFOQ.
Immediately, since the start of the Equal Employment Opportunity Commission (EEOC), the EEOC continues to play an important role in the day- to-day lawsuits and questions from employers about Title VII, and other employment regulations, such as BFOQ. In other words, the role of EEOC, is to "enforce the laws that prohibit discrimination based on Title VII, as well as, discrimination based on age in hiring, promoting, setting wages, testing, training, apprenticeship, and any other terms regarding employment"(National Archives).
Soon after the first year of operation of the EEOC, there were several cases involving sex discrimination and BFOQ. For example, in 1965, when the United States District Court for the Eastern District of Virginia declared in the case of Evenson v. Northwest Airlines that, Judith Evenson who filed a sex discrimination complaint against Northwest Airlines because it required women, but not men, to sign an agreement to resign after they got married, which was an unlawful employment practice. In particular, before becoming a stewardess with Northwest, Evenson was required to sign an pre-employment contract agreeing to resign upon marriage, or failing to resign, and agreeing to be dismissed upon marriage.
With this is mind, her biggest complaint was that males who were doing the same duties as the stewardess, were not forced to resign when they became married, so why does the women have to resign. Northwest argued that being an female was a BFOQ and males were not allowed to be stewardess. Nevertheless, Evenson proved her case that their was discrimination, therefore, the court awarded her job back, and Northwest Airlines was forced to change their employment practices in order to avoid further charges by the EEOC.
Another example happened years later in 1993, when the United States District Court of Hawaii declared in the case of EEOC v. Kamehame School-Bishop Estate, that Carole Edgerton, who was not selected for a position at the school because she was not a Protestant, was religious discrimination, and, therefore; should have been hired.
In detail, Carole Edgerton a non-Protestant contacted the school to apply for an advertised position as a substitute teacher. Edgerton was informed of the schools Protestant only requirement and filed a charge of religious discrimination with the EEOC. The school informed the EEOC, that the former bishop of the school at the time of her death in 1884, decided in her will that "the teachers of said schools shall be forever persons of Protestant religion". As a result, the EEOC agreeing with Carole Edgerton filed suit, alleging religious discrimination in violation of the Title VII employment act. The school stated that being a Protestant is a BFOQ; however, the court ruled that the Protestant only requirement that appeared in Mrs. Bishops will cannot transform the hiring of Protestant teachers into a BFOQ. In short, the court further stated that Mrs. Bishop was stating a personal preference that does not translate into a BFOQ, therefore, the court ruled in favor of the EEOC.
On the contrary, not all cases go in favor of the EEOC. For example, in 1983 the United States District Court for the District of Wyoming declared in the case of EEOC v. Wyoming that, the Wyoming Game and Fish Department did not violate the Age Discrimination in Employment Act (ADEA), after a supervisor who worked for the Wyoming Game and Fish Department was involuntarily retired at age 55. In particular, the court ruled that because the state may assess the fitness of its game wardens on an individualized basis, and may dismiss those wardens whom it reasonably finds to be unfit. Moreover, the District of Wyoming had the legal rights to be remained free under the Act to continue these practices, if they can demonstrate that age is a "bona fide occupational qualification" for the job of game warden.
Likewise, the court illustrated that Tenth Amendment covers state and local governments, such as, Wyoming, and is a valid exercise of Congress' powers under the Commerce Clause, both on its face and as applied in this case, and is not precluded by virtue of external constraints imposed on Congress' commerce powers by the Tenth Amendment. Therefore, the purpose of the doctrine of Tenth Amendment immunity, as articulated in National League of Cities, supra, is to protect States like Wyoming from federal intrusions that might threaten their "separate and independent existence."
In brief, the EEOC continues to take on cases such as these because it is their job to continue to enforce laws that prohibit discrimination, and to make sure that employers take a hard look at the decisions they make, based on these kinds of business necessities. Nevertheless, the EEOC knows that most of the cases will be a rough and long road ahead of them, but they know in the end, that they here to do what is best for the employers and employees.
To date, BFOQ presents different viewpoints for a business necessity. However, both sides need to take into careful consideration if, and when a BFOQ is needed when making decisions based on certain attributes. On the other hand, either decision can cause healthy or traumatic effects, if the rules of BFOQ are not interpreted correctly. Nevertheless, there are pros and cons to BFOQ that each side should evaluate when making decisions.
For example, one negative about BFOQ is that in certain places of employment, it does not
promote diversity of different religious beliefs in the workplace. In the article "Christian
College Fires Transgendered Professor" Roselyn James reports, Spring Arbor University fired
Julie Marie Nemecek after she became diagnosed with Gender Identity Disorder. The college,
which is located in Michigan, affiliates with the Free Methodist Church, believes
that Jesus Christ is their perspective for learning and strives to cater to students and teachers who believe in this concept.
At any rate, Ms. Nemeck who is an ordained Baptist minister and Evangelical Christian
announced her intentions to the college in 2005, that she would undergo surgery to become a
female. In addition, she worked at the University for over 16 years, and at the time of
her announcement; she was the Associate Dean of Adult Studies.
As a result, before her firing, she was called into a meeting with the University President
Gayle Beebe, and had the support of her wife whom she had been married to for over 35 years beside her. However, the meeting did not go as planned and the university restricted Julie to teaching online classes and her salary was decreased by 20%. The college also banned her from attending all college graduation ceremonies and did not renew her contract when it expired May of 2006.
In the meantime, Julie is continuing the fight for her dismissal and has filed a discrimination
claim with the EEOC in Detroit. She is also seeking to get back her job and paid damages for
her reputation. Julie is not alone in her fight to get her job back, the students have gathered to support her by staging protest against the decisions. However, the school response to all of the uproar is that the school has a BFOQ, which allows them to hire people of Christian faith only. Nevertheless, the fight continues for Julie and there is a mediation scheduled for March of 2007 (James).
Another negative about BFOQ is that it can promote sexism in the workplace. For example,
in 1991 the United States Court of Appeals declared in the case of Automobile Workers v.
Johnson Controls, Inc that, Johnson's fetal protection plan discriminated against women by not
requiring their male counterparts to demonstrate proof of medical sterility, despite the fact that lead exposure is hazardous to males as well. The court also ruled that Johnson's did not establish a BFOQ because they did not provide enough support to prove that the safety exception to the BFOQ limits women who are pregnant, or that it could effect the reproductive system of a woman.
Yet, Johnsons argued that its fetal-protection policy is reasonably necessary to further
the industrial safety concern that is part of the business necessity for the company. On the other hand, the courted ruled that excluding women with childbearing capacities creates on its
face a classification based on gender and violates the Pregnancy Discrimination Act (PDA).
Therefore, it should be the decision of the families, not the employer, whether a woman or man desires not to work.
Simultaneously, while there maybe some negative things about BFOQ, some employers
would argue that there are some positive things about BFOQ as well. One positive thing about BFOQ is that certain privacy rights should be protected creating less stress for
the employer. For example in 1984, the United States Court for the Northern District Court of
Illinois Eastern Division declared in the case of Norwood v. Dale Maintenance that sex is a bona
fide occupational qualification reasonably necessary to the normal operation of Dale and
Standard Oil's businesses.
Vera Norwood a female janitor employed by the company filed a sex discrimination
complaint that she was not selected for a position during the day shift, which involved cleaning
the men's bathroom. Dale Maintenance denied her the position on the basis that the company
has only allowed male janitors to clean the men's bathroom, and the women janitors the women bathrooms.
Dale argued that the arrangements put in place, meets the needs of the customers that they serve, by avoiding unnecessary uncomfortable situations for the customers. Norwood argued that she was discriminated against based on sex (gender), however, the court disagreed and ruled that "time spent by and individual in a washroom is a personal and private choice" and, therefore should be respected, so this reason qualifies as a BFOQ.
Another positive is for some employers, BFOQ it is necessary to allow employers to enforce
grooming policies for the workplace. For example, in 2006, the United States Court of Appeals
for the Ninth Circuit declared in the case of Jespersen v. Harrah's that, when the employee
Darlene Jespersen filed a complaint stating the company's grooming policies were burdensome, the court ruled that Harrah's standards requiring all bartenders, men and women, to wear the same uniform of black pants and white shirts, a bow tie, and comfortable black shoes. In addition, the policies of the women being required to use makeup, and guidelines informing women of their hair length, was reasonable and not burdensome, therefore, the grooming standards qualifies as a necessary BFOQ.
Jespersen a bartender refused to comply with the makeup requirements and was terminated. Jespersen claim was that she worked for the Harrah's as a bartender for over twenty years, and followed all of the rules set by the company, therefore, having a record of exceptional service.
Jespersen noted, in fact, that during her tenure, the company always had a policy desiring the
female beverage servers to wear makeup, but, the policy wasn't enforced until 2000. And, in
2000, the company implemented a "Beverage Department Image Transformation" program at 20 of the store locations. Part of the program contained new grooming and appearance standards, called the "Personal Best" program that applied to all employees. The program also contained gender appearance requirements as to nails, makeup and hair, which Jespersen complaint was about.
In addition, Jespersen complained that she did not wear makeup on or off the job. She
stated in her deposition, "wearing it would conflict with her self image." She also found the
makeup requirement offensive and uncomfortable. She informed the company that makeup
interfered with her ability to perform as a bartender. Therefore, unwilling to wear the makeup,
and not able to qualify for any positions at the casino with similar pay, she left her employment
Consequently, after she exhausted all of her administrative remedies, with the EEOC
and obtaining a right to sue notification, she filed her case in 2001. Moreover, she sought for
damaged declaratory and injunctive relief for discrimination. However, her case did not warrant
any proof, therefore Harrah's won the case. Nevertheless, the court noted that when a company
decides to have grooming policies, they need to consider good employees. The court also asked
that despite winning their case, that she be given her job back since she was in good standing.
In closing, employers can ascertain that there are many benefits to using BFOQ. However, in order for BFOQ to be beneficial in the future, employers need to take a long look at Title VII definition of BFOQ, before making any employment decisions. Moreover, if employers look at cases from the pass that triggered the cause of BFOQ, then it should prevent employers from making the wrong decisions that can cause undue hardship on the employers and employees moving forward. However, if there is any doubt on what an employer can or cannot do, the EEOC became established to govern Title VII and BFOQ. Therefore, employers need to consult with the EEOC, to make better decisions in the future.
Furthermore, while their will always be pros and cons on the issue of BFOQ. In the future, if employers make decisions based on the Title VII, and not their own interpretation of it, then employers and the EEOC will have less cases of discrimination, and more employment decisions based on equality and just treatment.