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Bona fide occupational qualifications (BFOQ) are employment qualifications that employers are allowed to consider while making decisions about hiring and retention of employees. The qualification should relate to an essential job duty and is considered necessary for operation of the particular business.
The Bona Fide Occupational Qualifications rule allows for the hiring of individuals based on race, sex, age, and national origin if these characteristics are bona fide occupational qualifications. This is an exception and complete defense to Title VII of the Civil Rights Act of 1964 which protects employees from discrimination based on religion, sex, age, national origin and color at the workplace.
In order to establish the defense of bona fide occupational qualification, an employer must prove the requirement is necessary to the success of the business and that a definable group or class of employees would be unable to perform the job safely and efficiently. An employer should demonstrate a necessity for a certain type of workers because all others do not have certain characteristics necessary for employment success. However the employer's motivation for excluding the protected class is not significant in evaluating the BFOQ defense. The inquiry focuses on the necessity of using an expressly forbidden classification.
Examples of BFOQ's are: mandatory retirement ages for bus drivers and airplane pilots for safety reasons, churches requiring members of its clergy to be of a certain denomination and may lawfully bar, from employment, anyone who is not a member. However, for positions at a church such as janitors, discrimination based on religious denomination would be illegal because religion has no effect on a person's ability to fulfill the duties of the job. Other examples of bona fide occupation qualifications include the use of models and actors for the purpose of authenticity or genuineness, the requirement of emergency personnel to be bilingual, judged on language competency, not national origin.
Example of a portion of a statute in Illinois mentioning bona fide occupational qualification
775 ILCS 5/2-104 [ Illinois Human rights Act, Article 2 Employment] Exemptions
Sec. 2-104. Exemptions. (A) Nothing contained in this Act shall prohibit an employer, employment agency or labor organization from:
(1) Bona Fide Qualification. Hiring or selecting between persons for bona fide occupational qualifications or any reason except those civil-rights violations specifically identified in this Article.