Is this a Bona Fide Occupational Qualification?

Thomson, Neal F.

CASE DESCRIPTION

The primary subject matter of this case concerns human resource management, particularly the issues of discrimination, and the Bona Fide Occupational Qualification (BFOQ) exception to Title VII of the civil rights act and the Age Discrimination in employment act. This case has a difficulty level of three to four, and is appropriate for an upper division, undergraduate level. This case is designed to be taught in one class hour, and is expected to require two to three hours of outside preparation by students.

CASE SYNOPSIS

This case examines the Bona Fide Occupational Qualification (BFOQ) exception in discrimination cases. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin. The Age Discrimination in Employment Act expands this protection to cover age discrimination against people over 40. However, there is an exception, the BFOQ. Under certain circumstances, an employer can discriminate, if age, gender or national origin can be shown to be a legitimate requirement, in order to perform the job. In this case, the BFOQ is defined, the criteria for a BFOQ are listed, and the limits to BFOQ are discussed. Several real examples are given of cases in which a company has alleged a BFOQ exists. Students are asked to examine each example, and determine which, if any are legitimate BFOQs. The main focus of this case is to teach students to apply the criteria from Title VII of the civil rights act BFOQ exemption, to real situations.

INTRODUCTION

In 1964, the Civil Rights Act was passed. Title VII of this act, which was targeted specifically at employers, prohibits discrimination in employment based on race, color, religion, sex or national origin. However, also included in this act is an exemption, allowing that discrimination may be acceptable, if the type of discrimination is an actual requirement to successfully perform the job. The name given to this clause was Bona Fide Occupational Qualifications (BFOQ). BFOQ can be claimed in the case of sex, religion, national origin, but not race. Later, the Age Discrimination in Employment Act (ADEA) was passed, extending the protection against discrimination to include age discrimination, for employees over 40. At this point, the BFOQ clause was also extended to the age category. In the following sections, Title VII, ADEA, and the BFOQ clause will be described in detail. Following this, you will be presented with several scenarios, in which a company claims BFOQ. Your task will be to apply the acts, and the BFOQ exemption, and determine which, if any of the claimed BFOQs are legitimate.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

The section of Title VII which prohibits employment Discrimination says the following, according to the Equal Employment Opportunity Commission Website (www.eeoc.gov).

UNLAWFUL EMPLOYMENT PRACTICES SEC. 2000e-2. [Section 703]

(a) It shall be an unlawful employment practice for an employer--(1) 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 of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

(c) It shall be an unlawful employment practice for a labor organization--(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; (2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

(e) Notwithstanding any other provision of this subchapter, (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, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. (www.eeoc.gov/policy/vii.html)

Section (e) of the above act is the BFOQ exemption. Some key items to note in section (e) include 1) there is no reference to a BFOQ for race, and 2) the requirement that the qualification be "reasonably necessary to the normal operation of that particular business or enterprise". What constitutes reasonably necessary? This question poses problems even for legal scholars. However, we must attempt to address this. Several reasons have been accepted as constituting "reasonably necessary. Among them are: authenticity, same sex privacy, and requirements to accomplish the work. Under authenticity, the state of Oregon, Civil Rights Division, gives the example of hiring an actor/actress or model based on sex, due to the characteristics of the role they portray. (www.boli.state.or.us). In other words, its reasonable to expect that King Arthur be played by a male, and Guenevere by a female. Same sex privacy applies almost exclusively to situations in which a person must disrobe, or be viewed in a state of undress. The ability to accomplish the work means that a person of the type excluded, CANNOT reasonably accomplish the work, or the criterion is central to the product or service being sold.

Below you will find several cases, in which an employer has claimed BFOQ. Examine each case, and determine whether the BFOQ is legitimate or not, and why.

CASE 1--ROLE MODEL

A youth foundation runs a camp for the treatment of delinquent boys. This camp has a position open for a youth counselor. Among the stated duties of the youth counselor position, is the requirement that the individual serve as a "male role model" to the children. Therefore, the foundation has advertised the position as being open only to male applicants. A female, with past experience as a youth counselor, and a degree related to the treatment of childhood mental disorders applies for the job anyway, feeling that she is qualified. The foundation rejects her. She files suit, claiming sex discrimination. The foundation responds with a BFOQ defense. (Wisconsin, 2005)

CASE 2--FAA REGULATIONS

The FAA (Federal Aviation Administration) had a regulation requiring that airline pilots be under the age of 60. Upon turning 60, all pilots are forced to retire. While this requirement does not extend to all members of the flight crew, one airline had the policy of extending this mandatory retirement to include their flight engineers, as the flight engineer is the backup pilot, in case of emergency. Three pilots working for this airline, upon their 60th birthdays, applied for transfers to flight engineer positions, rather than retiring. This is unusual, because the flight engineer position is essentially a demotion from pilot. However, the collective bargaining agreement, between the airline and the union, allows current employees to bid on any open position, based on seniority (The ADEA, 2005).

The airline rejected their applications. The pilots filed suit, and the airline defended with a BFOQ defense. The airline's arguments included 1) pilots and flight engineers are required to meet the same stringent requirements regarding health. 2) It is cost prohibitive to individually assess all employees at the age of 60, to see if they have age related problems that make them unable to function as flight engineers. 3) the flight engineer may be called upon to pilot the plane, if the pilot and first officer become incapacitated (The ADEA, 2005).

The workers responded by stating 1) the "age related problems," such as heart disease, cited by the airline, happen to young, as well as old employees. 2) it would be extremely rare for a pilot and first officer BOTH to become incapacitated, and even more unusual for the flight engineer to then suddenly develop incapacitating health problems. (The ADEA, 2005)

CASE 3--SEX SELLS

A popular casual sports bar/restaurant has developed what they feel is a theme. This 'theme" involves scantily clad women, working as servers, hostess, and the other publicly viewed employees. Therefore, they require, as a condition of employment, that the wait staff be female. They argue that this is a BFOQ, and that customers are buying this theme, rather than just food, and that this theme is an integral part of the business. (Wisconsin, 2005)

It should be noted here, that in the past, courts have determined that in the case of "strip clubs" sex as a BFOQ is legitimate, as the primary business is the stripping, and someone of the opposite sex would not appeal to the same customers. However, while this is true, courts have also ruled that "customer preference" was not sufficient reason to limit the sex of a salesperson, cashier, or other service provider. (Wisconsin, 2005)

Essentially, this issue in this case is: are scantily clad women what the customers are paying for, or are they coming to the restaurant to eat, drink, and watch sports.

CASE 4--THE NURSE

An OB/GYN unit of a hospital advertised for a position opening for a Registered Nurse. The hospital had a 20 year policy of hiring ONLY female obstetric nurses. A male, who was a registered nurse, with past experience as an obstetrics nurse, applied for the position, and was turned down, as he was not female. The hospital argued that a female was necessary for this position, due to the intimate nature of obstetrics. They said that having a male OB nurse violated the privacy rights of the patients. There are no OB nurse positions that do not involve patients with their private parts exposed. Furthermore, even in cases where a male doctor is allowed, patients demand a female nurse as a "chaperone". Finally, they showed evidence that at a teaching hospital, 80% of all patients refused to allow male students to be in the room during treatment, while few refused female students. (State EEO newsletter, 2004)

QUESTIONS FOR EACH CASE

1) Is this practice discriminatory?

2) Is the BFOQ defense legitimate?

3) Why, or why not?

REFERENCES

The ADEA and Forced Retirement retrieved 2/01/2005 from http://www.135steward.org/472us400.htm

State EEO Newsletter retrieved 2/01/2005 from http://www.wvf.state.wv.us/eeo/April%202004%20Newsletter.htm

Title VI of the Civil Rights Act of 1964 retrieved 2/01/2005 from www.eeoc.gov/policy/vii.html

The Wisconsin Equal Rights Decision Digest retrieved 2/01/2005 from http://www.dwd.state.wi.us/lirc/e127----.htm

Neal F. Thomson, Columbus State University