Bona fide Occupational Qualification

Bona fide Occupational Qualification

Bona Fide Occupational Qualification (BFOQ) is a legal doctrine within employment law in the United States, including California, that allows employers to make certain employment decisions based on protected characteristics like gender, religion, or age, when such characteristics are reasonably necessary for the normal operation of a particular business or job. The BFOQ defense can be used by employers to justify actions that would otherwise be considered discriminatory under state and federal anti-discrimination laws.

In the state of California, the concept of BFOQ is governed by the California Fair Employment and Housing Act (FEHA) and the California Labor Code, which mirror federal laws such as Title VII of the Civil Rights Act of 1964. Here is an extensive overview of BFOQ as a defense to disparate treatment in wrongful termination cases in California:

1. Legal Basis for BFOQ:

• BFOQ is recognized under both federal and California state law as an exception to the general prohibition against employment discrimination based on protected characteristics.
• It is codified in California under FEHA (Government Code Sections 12940 and 12941) and the California Labor Code (Section 12941).

2. Application of BFOQ:

• The BFOQ defense applies in limited and specific circumstances where a protected characteristic is reasonably necessary to perform the job or maintain the normal operation of the business.
• The burden of proof rests with the employer to demonstrate that the BFOQ is essential for the job or business operations.

3. Examples of BFOQ:

• Gender: For certain jobs in the entertainment industry, casting based on gender (e.g., a female actor for a female role) may be considered a BFOQ.
• Religion: A religious organization may require employees to adhere to specific religious beliefs or practices.
• National Origin: Airlines may have height and weight requirements for flight attendants, as long as they are necessary for safety reasons.

4. Problems and Challenges:

• Overuse of BFOQ: One challenge is that employers might misuse BFOQ defenses to justify discriminatory practices when they are not genuinely necessary for the job or business.
• Proving Necessity: Employers must provide strong evidence that the protected characteristic is indeed essential for the job or business, which can be difficult to establish.
• Balancing Rights: BFOQ may conflict with employees’ rights to be free from discrimination, creating a tension between individual rights and business necessity.

5. Case Example:

• Imagine a fitness company in California that specializes in women’s health and fitness programs. The company only hires female trainers and support staff because it believes that having a female-only environment is crucial to its business model. A male applicant who is denied employment files a complaint alleging gender discrimination.
• The fitness company may assert the BFOQ defense, arguing that gender is a bona fide occupational qualification for the positions because it is essential to creating a comfortable and effective environment for its female clients.
• The court would then evaluate whether the company’s use of gender as a qualification is reasonable and necessary for the business to function. If it is found to be so, the company might prevail in its defense.

Conclusion

In conclusion, BFOQ is a legally recognized defense to disparate treatment in wrongful termination cases in California, but its application is narrowly construed and subject to rigorous scrutiny. Employers must demonstrate a legitimate and essential connection between the protected characteristic and the job or business operations. The use of BFOQ should be carefully considered and documented to avoid legal challenges, as it can be a complex and contentious issue within employment law.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Jury Instructions

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• Bona fide Occupational Qualification. Government Code section 12940(a)(1).
• Bona fide Occupational Qualification. Cal. Code Regs., tit. 2, § 7286.7(a).
• Bona fide Occupational Qualification Under Federal Law. 42 U.S.C. § 2000e-
  2(e)(1).
• The BFOQ defense is a narrow exception to the general prohibition on
  discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1986)
  187 Cal.App.3d 1, 19 [231 Cal.Rptr. 769]; International Union, United
  Automobile, Aerospace and Agricultural Implement Workers of America, UAW v.
  Johnson Controls, Inc. (1991) 499 U.S. 187, 201 [111 S.Ct. 1196, 113 L.Ed.2d
  158].)
• “ ‘[I]n order to rely on the bona fide occupational qualification exception an
  employer has the burden of proving that he had reasonable cause to believe, that
  is, a factual basis for believing, that all or substantially all women would be
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  unable to perform safely and efficiently the duties of the job involved.’ ”
  (Bohemian Club, supra, 187 Cal.App.3d at p. 19, quoting Weeks v. Southern Bell
  Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, 235.)
• “First, the employer must demonstrate that the occupational qualification is
  ‘reasonably necessary to the normal operation of [the] particular business.’
  Secondly, the employer must show that the categorical exclusion based on [the]
  protected class characteristic is justified, i.e., that ‘all or substantially all’ of the
  persons with the subject class characteristic fail to satisfy the occupational
  qualification.” (Johnson Controls, Inc. v. Fair Employment & Housing Com.
  (1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158], quoting Weeks, supra, 408
  F.2d at p. 235.)
• “Even if an employer can demonstrate that certain jobs require members of one
  sex, the employer must also ‘bear the burden of proving that because of the
  nature of the operation of the business they could not rearrange job
  responsibilities . . .’ in order to reduce the BFOQ necessity.” (Johnson Controls,
  Inc., supra, 218 Cal.App.3d at p. 541; see Hardin v. Stynchcomb (11th Cir. 1982)
  691 F.2d 1364, 1370–1371.)
• “Alternatively, the employer could establish that age was a legitimate proxy for
  the safety-related job qualifications by proving that it is ‘impossible or highly
  impractical’ to deal with the older employees on an individualized basis.”
  (Western Airlines, Inc. v. Criswell (1985) 472 U.S. 400, 414–415 [105 S.Ct.
  2743, 86 L.Ed.2d 321], internal citation and footnote omitted.)
• “The Fair Employment and Housing Commission has interpreted the BFOQ
  defense in a manner incorporating all of the federal requirements necessary for
  its establishment. . . . [¶] The standards of the Commission are . . . in harmony
  with federal law regarding the availability of a BFOQ defense.” (Bohemian
  Club, supra, 187 Cal.App.3d at p. 19.)
• “By modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term to
  qualifications that affect an employee’s ability to do the job.” (International
  Union, United Automobile, Aerospace and Agricultural Implement Workers of
  America, UAW, supra, 499 U.S. at p. 201.)
  Secondary Sources
  8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1032,
  1033
  Chin et al., California Practice Guide: Employment Litigation, Ch.9-C, California
  Fair Employment and Housing Act (FEHA), ¶¶ 9:2380, 9:2382, 9:2400, 9:2430 (The
  Rutter Group)
  1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
  Harassment, §§ 2.91–2.94
  2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal
  Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
  11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
  CACI No. 2501 FAIR EMPLOYMENT AND HOUSING ACT
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  Discrimination, §§ 115.54[4], 115.101 (Matthew Bender)
  California Civil Practice: Employment Litigation § 2:84 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.