By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This article contains content adapted from lesson material I wrote for APUS classes. It is the sixth article in an eight-part series on employment discrimination law and sound employment practices. In this sixth article, we break down the concept of bona fide occupational qualifications and how they can be used to circumvent anti-discrimination employment laws in certain contexts.
Start a management degree at American Public University.
Bona Fide Occupational Qualifications (BFOQ) Can Allow Some Discrimination to Legally Occur
Just because certain qualities have been proscribed by law as a basis for discrimination does not mean that discrimination based on those same qualities – even intentional discrimination – can never legally occur. Under certain circumstances, business owners may be able to successfully justify discrimination in their employment practices.
However, doing so requires proof of the existence of a bona fide occupational qualification. But this standard is not easy to meet.
A bona fide occupational qualification (BFOQ) is defined in Title VII of the 1964 Civil Rights Act as a qualification which is “reasonably necessary to normal operation of [a] business.” The law makes every effort to provide a fair and unbiased employment environment for all people. But it also recognizes that there may be rare cases where discrimination against an individual, based upon protected characteristics, is prudent or even necessary.
The law recognizes an obvious need for discrimination when the concern is safety or privacy. For instance, there may be situations in the healthcare industry where having medical staff of the same gender as patients serves privacy interests. Likewise, in the penitentiary system, employing corrections officers of the same gender as inmates may make for a safer environment for everyone.
In another example, airline pilots are required by the Federal Aviation Administration (FAA) to retire at age 60 on the grounds that mental faculties, reaction times and other critical cognitive variables are known to decline as people age. Some pilots have challenged this rule on the grounds that the FAA should assess the abilities of pilots reaching the threshold age before assuming that they are no longer fit to fly, but this requirement for automatic retirement has yet to be overturned.
Hooters Was Allowed Legal Discrimination Against Males Due to a Loophole
Whether BFOQs must concern privacy or safety to be legitimate is still unclear. The most well-known and instructive case addressing this matter was the notorious Hooters restaurant debacle. In a series of multi-plaintiff lawsuits, male job applicants sued Hooters for discrimination after they applied to work at various Hooters restaurants and were rejected because they were males.
Hooters is a very well-established restaurant company. They argued that their notoriety and brand recognition is derived primarily from their waitstaff, who are exclusively female, scantily clad, young, fit, and attractive.
The issue was whether the “Hooters Girl” concept and image is essential to the Hooters brand. To deny the company the legal right to preferentially select women over men would therefore be tantamount to destruction of Hooters’ core identity.
The cases went into litigation and were ultimately settled by Hooters, so there was no definitive verdict to create a clear precedent. In the settlements, Hooters agreed to pay millions of dollars in damages. They also agreed to create host and bartender positions for male applicants, though the company not specifically prohibited from continuing to maintain an all-female waitstaff.
Based on these concessions, Hooters’ attorneys probably did not anticipate winning in court. It’s likely they predicted a jury would find that, while attracting customers through sex appeal may be a significant element of the Hooters business model, it was an insufficient reason to discriminate.
It is important to emphasize again that the standard for BFOQs is not an easy one to meet. A business owner cannot simply decide unilaterally that a particular trait is essential for working in a given position or capacity. Instead, such exclusionary policies must be justifiable and based on a legitimate business need.
Controversial BFOQs in the Performing Arts and Modeling Occupations
Aside from the Hooters example, other environments where BFOQs are controversial include performing arts and modeling. In these occupational areas, it is unclear whether one’s qualities – even the immutable ones – may determine one’s suitability for a particular job. For example, the law allows for gender as a BFOQ in casting actors and actresses for the purposes of “authenticity or genuineness,” but race has been explicitly proscribed.
In this performing arts context, the legislative history of Title VII interestingly speaks to the notion that play or movie directors may cast for parts based on “physical appearance” for likeness to a role. In addition, it specifically mentions an example about casting for the role of a “Negro.”
But one must remember that physical appearance may incorporate more characteristics than just race. Consequently, summarily denying someone a job opportunity based on race alone is illegal.
Furthermore, computer imaging technologies available today allow for the drastic manipulation of the physical appearance of an actor or actress. As a result, it is difficult to defend discriminatory practices for non-live performances.
Additionally, male and female models are hired based upon specific body types, sizes, skin colors, races, and other factors. Historically, this has been permitted where such practices are necessary; an example would be hiring only males for the modeling of men’s clothing. But this is interesting as it has been used as a loophole in various occupations that might not intuitively be thought of as “modeling.”
For example, the 2007 movie “Ocean’s 13” made reference to the common Las Vegas practice of hiring casino cocktail servers as “models who serve” rather than just staff. By changing the job title, description, and specifications in this way, Las Vegas and Atlantic City casinos have traditionally been successful in defending their right to hire and fire based on factors such as gender, size, and even subjective attractiveness – as they often do. However, more recent cases have suggested that hiring based on looks alone may not be the smartest thing to do.
For employers, the general rule to bear in mind is that if there is any good-faith question as to whether a hiring preference can be justified as a bona fide occupational qualification, it probably can’t. Employers should make every effort to avoid discrimination of any kind – illegal or otherwise – unless doing so is absolutely necessary and unavoidable.
In the next part of this article series, we’ll look at how the advent of affirmative action programs has changed the landscape of employment discrimination laws in the United States.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.