Jun 04, 2018

Mind Your P’s and Q’s . . . and BFOQs

By: Allison Mann

Anyone who has been to a Hooters restaurant can tell you something about their servers. They are all scantily clad women which the company proudly dubs its “Hooters Girls.” Over the years, the “breastaurant” chain has settled several lawsuits by men who were denied employment as servers. This has avoided a court ruling on whether Hooters’ server hiring practices are subject to a bona fide occupational qualification (BFOQ).

A BFOQ is a very narrow exception against the general prohibition barring employers from discrimination against protected classes. In practice, a BFOQ is a specific employment qualification that, although overtly discriminatory, relates to an essential job duty and is considered reasonably necessary to the operation of that particular business or enterprise. The BFOQ could be applied by an employer as a hiring qualification or as a reason for terminating employment. Customer satisfaction alone is never enough justification, nor can a BFOQ be based on the preferences of employers or co-workers. Instead, an employer must show that a BFOQ is related to the essence or central mission of its business and that the company would be unable to perform its primary function or service without the BFOQ.

Some examples of BFOQs which courts have recognized include:

1. Forced retirement age for airline pilots and bus drivers;

2. Clothing manufacturers may hire only models of the same gender as their clothing line; and

3. Religious schools may hire employees which share the school’s faith.

Upholding a company’s employment qualification as a BFOQ against a claim of employment discrimination is a tough legal fight, though the BFOQ defense may be raised against both a private lawsuit or a government agency investigation of employment discrimination. Two federal laws allow BFOQ defenses against federal employment discrimination claims. Title VII of the Civil Rights Act (CRA) allows a very narrow BFOQ defense against claims of discrimination on the basis of sex, religion, or national origin. The Age Discrimination in Employment Act (ADEA) allows a very narrow BFOQ defense against claims of discrimination on the basis of age.

Closer to home, the North Dakota Human Rights Act (NDHRA) allows a BFOQ defense for state employment discrimination claims. The NDHRA allows a very narrow BFOQ defense against claims of discrimination on the basis of religion, sex, national origin, physical or mental disability, marital status, or participation in a lawful activity taking place off the employer’s premises during nonworking hours unless the activity directly conflicts with the essential business interests of the employer. When considering state employment discrimination claims brought under the NDHRA, state courts may look to federal court interpretations of the corresponding federal statutes for guidance when it is helpful and sensible to do so.

There are no standard bright-line test courts use to evaluate whether a BFOQ exception applies. Instead, each case turns on factual findings, usually performed by a jury. These findings will determine the nature of the business, the goods or services provided, the duties and responsibilities of the job in question, and whether the BFOQ exception is sufficiently narrowly tailored.

Even when a BFOQ is upheld, limitations are placed on the extent to which the BFOQ may apply. For example, a religious school may only use a religion BFOQ where it is essential to its primary business functions. This would limit application of a religion BFOQ to certain positions such as the school’s president, principal, chaplain, or teaching faculty but not where it is not essential such as a secretary or janitor position. Some courts have stated race or color cannot ever be a BFOQ for any job because upholding an exception would defeat the main purpose of the CRA. However, courts have also found the First Amendment allows a very narrow exception only for artistic work where the specific race or color qualification is integral to the story or artistic purpose.

Why would any employer want to establish a BFOQ? Sometimes it is necessary as a hiring practice. At other times, it may be necessary to terminate employment. Examples are oftentimes helpful in understanding the mechanics of such a defense:

1. In an unsuccessful BFOQ defense, a battery manufacturer barred all women, except those whose infertility was medically documented, from any jobs involving potential lead exposure to protect any possible pregnancies. In a class action suit challenging the employer’s hiring policy, the courts found the practice of barring all women was not a BFOQ reasonably necessary to the normal operation of the manufacturing business. In short, the fact that the job posed some risk to any women who might become pregnant did not justify barring all fertile women from the position.

2. In a successful BFOQ defense, a physician was discharged for, amongst other things, two incidents of reporting to work with alcohol on her breath. In a state lawsuit alleging wrongful termination, both the trial court and the state supreme court ruled against the doctor. The courts found that, even if alcoholism and drug addiction are physical or mental handicaps, the discharge was not discriminatory because it was based on a legitimate BFOQ which reasonably requires a physician’s sobriety during work hours.

Understanding how to raise the BFOQ defense is important because markets and laws are constantly evolving. Traditional notions, such as those about gender or age, are occasionally redefined and may render past BFOQs inapplicable or give way to new ones. For example, the forced retirement age for pilots has increased several times. Laws have also been extended to protect additional classes, including protections against pregnancy discrimination.

Nonetheless, carefully crafted company policies can survive challenges when they balance the competing interests. For example, a North Dakota employee was fired from a refinery for violating a company policy barring use of a company vehicle with a BAC in excess of .04. The employee claimed the policy violated North Dakota’s law protecting participation in a lawful activity because his BAC was only .58 (under the legal limit of .08) when he was involved in a car accident which had occurred off company premises during non-working hours. The North Dakota Supreme Court upheld the refinery’s policy as a BFOQ. The court found the BFOQ was narrowly tailored and specifically designed to discourage substance abuse while using company property. The BFOQ was necessary to protect the company’s property and assets, which are essential business-related interests.

If you have questions about an employment qualification or policy, or your business is already involved in a claim of employment discrimination, you should seek competent legal advice from a knowledgeable attorney. This is an especially important step to take from the outset to help skillfully guide your business through any investigation, conciliation, mediation, and/or civil litigation.

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I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the June, 2018 Southwest Area Human Resource Association newsletter.