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.
INSTRUCTORS' NOTES
RECOMMENDATION FOR TEACHING APPROACHES
I have often found that students do not clearly understand the
concept of Bona Fide Occupational Qualifications, without seeing
specific examples of BFOQs. This case was designed to help clarify this
particular issue, in a manner that allows insightful discussion of the
topic.
Generally, the approach I take with this is to divide the class up
into small groups, and assign them each one or more of the cases to
discuss. Then each group will present their determinations to the class,
and we will discuss, as a whole, whether the analysis picked up the
important facets of the case. Each of these cases is based on a specific
real situation, and all but one have been decided in a court of law. The
specifics of each case follow:
CASE 1--ROLE MODEL
This is based on two specific cases. The first is Robinson vs.
Kenosha Youth foundation. In this case the Wisconsin Labor and Industry
Review Commission determined that it was a legitimate BFOQ, to require
male counselors for positions in which they were to provide same-sex
role models for pre-delinquent male children. Similarly, in Stonecipher
vs. DILHR, a The Dane County (WI) Circuit court upheld sex as a BFOQ for
child care workers in a juvenile detention center, based on the need to
provide same-sex role models. To answer the specific questions the
students are to reply to:
1) Is this practice discriminatory? Yes, this practice
discriminates based on sex of the applicant.
2) Is the BFOQ defense legitimate? Yes. Providing a same-sex role
model for children, particularly delinquent, or pre-delinquent children,
has been upheld as a BFOQ.
3) Why, or why not?
Psychologists can show compelling evidence of a relationship
between same-sex role models, and the success of programs designed to
avoid delinquency, or rehabilitate delinquents.
CASE 2--FAA REGULATIONS
This case is the case of Western Air Lines Inc. Vs. Criswell 472
U.S. 400 (1985). This particular case was decided by a U.S. District
court, and appealed to the U.S. Supreme Court. The Supreme Court upheld
the district court decision, which found that age was not a BFOQ.
1) Is this practice discriminatory?
Yes, age is being used as the determining factor in hiring.
2) Is the BFOQ defense legitimate?
According to the U.S. District court, and upheld by the U.S.
Supreme court, no.
3) Why, or why not?
In order for a qualification to be a legitimate BFOQ, all or nearly
all of the excluded group must be incapable of performing the work.
While the airline was able to establish that more people over 60 were
incapable of performing the duties, they could not convincingly show
that the whole class of workers was unable. In fact, the airline used
individual testing to determine fitness of its under 60 employees, and
there was no reason that they could not continue to assess the fitness
of the employees on an individual basis, once they hit 60. The
plaintiffs in this case also used the practices of other airlines, who
allowed flight engineers over 60, and had not had problems from doing
so, to rebut the airline's claim.
CASE 3--SEX SELLS
This case is loosely based on several suits filed against Hooters.
Most notably, a class action suit was filed against the chain by 7 males
who applied for wait staff positions, and were rejected based on their
sex. Hooters settled the case in 1997 for $ 3.75 million, avoiding a
legal decision in the case. The lack of a court decision is an important
item to note, as they avoided a legal condemnation of their business as
unacceptable. This leaves the actual BFOQ question unanswered. The
specifics of the settlement raise more questions than they answer.
1) Is this practice discriminatory?
Yes, men are not considered for wait staff "hooters girl"
positions.
2) Is the BFOQ defense legitimate?
There is not clear unambiguous legal precedent. On the side arguing
no, there is the fact that Hooters was forced to pay $3.75 to settle a
class action suit, thereby supporting the idea that they were doing
something wrong. However, on the side arguing BFOQ, they point to the
fact that the settlement allows Hooters to continue their operations,
with an all female wait staff. However, they were required to make some
other positions (eq. bartender and host) gender neutral.
3) Why, or why not?
One issue to discuss here, is the centrality of "vicarious sexual recreation," to their business model. Hooters says the
"Hooters girl" experience is a central part of their business
model. Opponents say that Hooters operates as a restaurant, not a sex
show, and therefore the sex of the wait staff is not an important facet
of the business model.
It should be pointed out at this point, that business operating sex
shows (strip clubs) have successfully defended sex discrimination as a
BFOQ. The sex of the stripper is crucial in the delivery of the desired
service to the customer. On the opposite side, it should be pointed out
that customer preference is not an acceptable BFOQ. Whether the majority
of customers in a truck stop prefer that a female waitress serve their
eggs and toast, is irrelevant. If a male waiter can do the job, then the
fact that the customer would prefer a female is irrelevant. It might
also be pointed out that customer preference was one of the arguments
that many businesses attempted to use to defend race discrimination,
during the 1960s.
CASE 4--THE NURSE
This is based on the case Slivka vs. Camden Clarke Memorial
Hospital (2004). The details of the case are exactly as described in the
main portion of this paper.
1) Is this practice discriminatory?
Yes, sex is used as a criterion for hiring
2) Is the BFOQ defense legitimate?
According to the West Virginia Supreme Court, Yes.
3) Why, or why not?
In determining the BFOQ in this case, the court focused on the
privacy of the patient. Due to the highly personal nature of obstetrics,
and the necessity for the patient to have their private parts exposed
during examinations, requiring same sex nurses was determined to be an
allowable BFOQ. This was in spite of evidence that other hospitals
successfully used male obstetric nurses. In fact, the plaintiff in this
case, Mr. Slivka, had served previously as an obstetrics nurse at
Marietta Memorial Hospital.
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
