BFOQ Practicum_Sanders Final

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GGU MGT:358 Employment LAW Professor Cushing

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Bona Fide Occupational Qualifications:

Bona Fide Occupational Qualifications BFOQ DEFENSE CARLOS A. SANDERS MGT 358: EMPLOYMENT LAW PROFESSOR TOM CUSHING

HISTORY: BFOQ DOCTRINE:

HISTORY: BFOQ DOCTRINE Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees when making employment decisions . The verbiage written into Section 703 of Title VII is: It shall be an unlawful employment practice 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 of employment, because of such individual's race, color, religion, sex, or national origin. (42 U.S.C. § 2000e-2(a)(1 )) Like with most things Government there are waivers and exemptions, which in this logic gives birth to BFOQ. Key things remember: BFOQ determinations are made on a case-by-case basis. Equal Employment Opportunity Commission (EEOC) does have a list of general BFOQs that has been recognized.

HISTORY: BFOQ CONT.:

HISTORY: BFOQ CONT. Title VII, Section 703 (e)(1) of the Civil Rights Act of 1964 states : Notwithstanding any other provision of this subchapter . . . it shall not be an unlawful employment practice for an employer to hire and employ employees . . . 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. (42 U.S.C. § 2000e-2(e)( 1 )) We do not see Age mentioned, but will discuss later. BFOQ should be utilized narrowly and sparingly.

Areas of Defense: BFOQ:

Areas of Defense: BFOQ T he BFOQ is reasonably necessary for the essence of the business and t hat it has reasonable cause, i.e., a factual basis for believing that all or substantially all persons within the protected group would be unable to perform safely and efficiently the duties of the job involved, or whether it is impossible or impractical to deal with persons in the protected group on an individual basis. The statutory defense of BFOQ can be used in the following protected classes : Religion, Sex, National Origin and Age (through later statue) Important to note ** RACE OR COLOR CANNOT be used in a BFOQ Defense**

Religion as BFOQ:

Religion as BFOQ The EEOC on their site has stated: Religious corporations, associations, educational institutions, or societies are exempt from the federal laws that EEOC enforces when it comes to the employment of individuals based on their particular religion. In other words, an employer whose purpose and character is primarily religious is permitted to lean towards hiring persons of the same religion. This exception or BFOQ relieves religious organizations only from the ban on employment discrimination based on religion . An excerpt from Society of Human Resource site gives a more current definition, which stated: Title VII generally prohibits employers from discriminating against individuals because of religion, religious organizations and religious educational institutions are exempt from some of the Title VII provisions “with respect to the employment of individuals of a particular religion.”  Under this exemption, religious organizations are permitted to give employment preference to members of their own religion. This exemption applies to institutions whose “ purpose and character are primarily religious .”  Keep point, because of religion-exemption through Title VII they are not many Religion as BFOQ Defenses.

Religion as BFOQ – Legal Test:

Religion as BFOQ – Legal Test The American Bar, on its website, basically identifies the test that allows for discrimination is if it is reasonably necessary to the normal operation of a particular business, and one is likely to be dealing with a religious corporation or religious educational institution. Facts to consider when identifying the latter is: Whether its articles of incorporation state a religious purpose. Whether its day-to-day operations are religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?). Whether it is not-for-profit entity. Whether it is affiliated with, or supported by, a church or other religious organization.

Religion as BFOQ – Examples :

Religion as BFOQ – Examples C hurches requiring members of its clergy to be of a certain denomination and may lawfully bar, from employment, anyone who is not a member. Example being that the Catholic church could discriminate in their hiring process of their clergy requiring that the employee be of Catholic faith. (This is for Clergy) What about if they are hiring for the maintenance crew to work at the Catholic Church?

Sex (Gender) as BFOQ:

Sex (Gender) as BFOQ Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000-e et seq. , which forbids covered employers from discriminating against persons on the basis of their sex. Thus, an employer may not limit employment opportunities because of sex unless it can show that sex is a bona fide occupational qualification ("BFOQ") reasonably necessary to the normal operation of an employer's particular business. 42 U.S.C.A. § 2000e-2(e)(1).

Sex (Gender) as BFOQ – Legal Test:

Sex (Gender) as BFOQ – Legal Test The Supreme Court has really applied a two-step test for Gender to be considered a BFOQ. The employer has the burden of proof to show that the essence or central mission of its business would be undermined by hiring members of both sexes. The second, there is no factual basis for a reasonable person to believe that all or substantially all persons of one gender could not perform the job duties ‘safely’ and ‘efficiently’. In areas of like privacy, safety, and authenticity courts has backed BFOQ for limited situations in which discrimination is permissible in ‘certain instances’ where sex discrimination is ‘reasonably necessary’ to the ‘normal operations’ of the ‘particular’ business.

Sex (Gender) as BFOQ – Examples:

Sex (Gender) as BFOQ – Examples FAIL – WILSON VS. SOUTHWEST AIR (1981) SUCCESS – TORRES VS. WISCOUSINE DEPARTMENT OF HEALTH AND SOCIAL SERVICES (1988) SETTLED W/CONCESSIONS – EEOC VS. HOOTERS

Age as BFOQ:

Age as BFOQ Age was included later as an extension to current exemption under Title VII. The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the normal operation of the business . Public safety is the most common premise for having an age restriction.

Age as BFOQ – Legal Test:

Age as BFOQ – Legal Test Courts have developed a two-step test for analyzing BFOQ defenses in dealing with policies that bar a certain age group from a job. You must show either (1) there is a substantial basis for believing that all or nearly all employees above a certain age lack the qualifications for the position in question or (2) that reliance on an age classification is necessary because it's highly impractical for you to ensure by individual testing that your employees will have the necessary qualifications for the job. These BFOQs usually apply to jobs that involve driving or flying or physically demanding jobs.

Age as BFOQ – Examples:

Age as BFOQ – Examples The most notable established BFOQ for Age is concerns mandatory retirement ages for airline pilots. As such, applicants for airline pilot can be rejected if they are a certain age (60 years as per the Federal Aviation Administration in the case of pilots and first officers), and current employees can be compelled to retire when they reach that age due to safety concerns. PUBLIC BUS DRIVERS AIRLINE PILOTS

National Origin as BFOQ:

National Origin as BFOQ Prohibited under Title VII of Civil Rights Act of 1964, The EEOC in their guidelines goes deeper into unlawful actions of discrimination expanding upon National Origin. A few areas were: The employee's particular place of origin or an ancestor's place of origin. The employer's perception that an individual is a member of a particular national origin group Physical , cultural, or linguistic characteristics of a national origin group Bona fide occupational qualification (BFOQ).  It is permissible to make employment decisions on the basis of national origin or citizenship because of a BFOQ "reasonably necessary to the normal operation" of a business. Under regulations issued by the EEOC, a BFOQ based on national origin will be interpreted very narrowly. Because BFOQ situations are extremely rare, employers should be very cautious in relying on such a defense when making employment decisions.      The preferences of customers, employers, vendors, or clients cannot serve as the basis for a BFOQ based on national origin or as a defense to discrimination . *Information pulled from hr.blr.com. Cited on Reference slide.

National Origin as BFOQ – Legal Test:

National Origin as BFOQ – Legal Test Avigliano vs. Sumitomo Shojii America, Inc. (1981) Established Four Factor test: Familiarity with language and culture Knowledge of local products, services market, customs and business practice Familiarity with personnel and operations Acceptability to the personnel whom doing business with

National Origin as BFOQ – Examples:

National Origin as BFOQ – Examples (Permissible) Moroccan Restaurant want to hire a Moroccan chef or Korean person to work in Korean organization. (Impermissible) German language school wants to hire only German nationals as teachers. Walt Disney Company BFOQ success

California Law - BFOQ :

California Law - BFOQ California Department of Fair Employment and Housing Act (DEFH) Work and file signed complaints with EEOC, which often time EEOC DEFH’s findings and decisions. Expands the classes that are protected to include areas like sexual orientation, gender identity, medical condition, marital status, veteran and military status, genetic info and more. Four Factor Legal Test

References: :

References: Age Discrimination and Employment Act of 1967. Equal Employment Opportunity Commission, Facts About Age Discrimination. Retrieved November 26, 2015. Associated Press (February 16, 1998). Disney wants workers to match area’s theme. Sun-Sentinel, p. 2D Avigliano v. Sumitomo Shojii America, Inc. 638 F.2d 552 (Second Circuit Court of Appeals 1981). California, S. O. ( n.d. ). Employees and job applicants are protected from bias. Retrieved December 04, 2017, from https:// www.dfeh.ca.gov /Employment/ Civil Rights Act of 1964, Title VII. Retrieved November 25, 2017 from: www.eeoc.gov/laws/statues/titlevii.cfm Chapter 1 - Employment. (2017, August 03). Retrieved December 01, 2017, from https:// oag.ca.gov /publications/ womansrights /ch1 Dothard v Rawlinson, 433 U.S. 321 (1977) Equal Employment Opportunity Commission. Compliance Manual. Retrieved November 25, 2017 from: www.eeoc.gov/policy/docs Equal Employment Opportunity Commission (2004). Informal Discussion Letter, Religious Organization/Religious BFOQ. Retrieved November 26, 2017 from: www.eeoc.gov/foia/2004 Mujtaba , B.G. and Cavico , F.J. (2010). The Aging Workforce: Challenges and Opportunities for Human Resource Professionals. ILEAD Academy: Florida Reports , B. A. ( n.d. ). National Origin Discrimination. Retrieved December 03, 2017, from https:// hr.blr.com/samples/national_origin_discrimination-co.htm Torres v. Wisconsin Department of Health and Social Services, 859 F.2d 1523 (Seventh Circuit Court of Appeals 1988). United States Code, Title 42, Section 2000e-2(e)(1)(2017) Wilson v. Southwest Airlines Co., 517 F. Supp. 292 (Northern District of Texas 1981).

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