When it comes to employment law, the expression bona fide occupational qualification (BFOQ) is an exception to the law prohibiting discrimination in the workplace. The exception is necessary to protect employers from charges of violating antidiscrimination laws while hiring employees who are most suited for a specific job. In order to establish a BFOQ, employers must demonstrate there is a significant business necessity for a job requirement that involves limits based on a characteristic listed as a protected category in federal and state employment laws.
In practical terms, here’s an example. It’s perfectly acceptable for a restaurant to hire only female servers because those customers may prefer it. The customers’ preference to be served by female waitstaff is a legitimate business requirement; therefore, it qualifies as a BFOQ. This type of qualification is designed to ensure customers have the experience they desire.
Applicants cannot be excluded from consideration in any hiring process—nor can an employee be fired or demoted—based on any characteristic except when that characteristic is directly tied to a BFOQ. The burden of proof is fully on the employer, who needs to be able to demonstrate that an individual’s protected characteristic is a necessary criterion which bars him or her from being able to perform the job satisfactorily.
Employers need to ensure qualifications for any job are objective and applied fairly. They should consider BFOQ on a case-by-case basis, allowing for any exceptions that can be justified. In any case, employers should always make sure that in any job they need to fill, it is necessary to consider qualifications that limit consideration to those in a protected class. Failing to do so may result in potential lawsuits, and employers need to remain vigilant in protecting their business from potential legal pitfalls.