An example of bona fide professional qualifications is the mandatory retirement age for bus drivers and airline pilots for safety reasons. In addition, a manufacturer of men`s clothing can legally advertise male models in advertising. Religious belief can also be considered a BFOQ; For example, a religious school may require by law that its faculty members be members of that denomination and may legally exclude from employment any person who is not a member. Fire departments may require firefighters to be able to lift a certain weight to prove they are able to transport fire victims out of a burning building. The job requirement states that the candidate must be fluent in Hebrew, read and write, so he must have been born in Israel. A Bona Fide Professional Qualification (BFOQ) (United States), a Bona Fide Occupational Requirement (BFOR) (Canada) or a Genuine Professional Qualification (GOQ) (United Kingdom) is a characteristic or attribute that employers are allowed to consider when hiring and retaining employees – a quality that would constitute discrimination in other contexts that violates civil rights labour law. These qualifications must be indicated in the job description. Employers can use a BFOQ to make hiring decisions for a particular position based on criteria such as gender, religion or national origin if they can demonstrate that these factors are an essential requirement of the job. Title VII allows discrimination on the basis of “religion, sex or national origin in cases where religion, sex or national origin is a bona fide professional qualification reasonably necessary for the normal operation of the undertaking or undertaking concerned”. This exception was extended to age discrimination by the Employment Age Discrimination Act (ADEA). This exception does not apply to discrimination on the basis of race. NYS has also adopted the federal rule that race cannot justify BFOQ discrimination. In a landmark case, the Supreme Court of Canada presented a three-step test to determine whether a prima facie discriminatory rule or standard can be justified as a bona fide occupational requirement.
The employer must prove that: A bona fide professional qualification is essentially a defence against discrimination, usually based on the existence of a specific company policy. For example, a true professional qualification may be the fact that people over the age of 50 cannot be hired as police officers. This classification allows companies to discriminate on the basis of religion, sex, age or national origin in circumstances where this is considered appropriate for the operation of the company in question. However, this exception does not apply to discrimination on the basis of race. Even if you`re pretty sure that a certain type of employee would be a good fit (or not) for your company, you could expose yourself to discrimination lawsuit if you`re not careful. An employment lawyer can help you determine whether a particular employment requirement can legally qualify as a bona fide professional qualification. Don`t take any chances; Get help from a local labour lawyer today. It is not unlawful for an employer, employment agency or work organisation to take (1) measures otherwise prohibited by paragraphs (a), (b), (c) or (e) of this Section if age is a bona fide occupational qualification reasonably necessary for the normal operation of the undertaking concerned or where differentiation is based on reasonable factors other than age; or if such practices affect an employee in a workplace in a foreign country and compliance with these paragraphs would result in that employer or a business controlled by such an employer violating the laws of the country in which that workplace is located.
[4] Bona fide professional qualifications are generally only valid in cases where the BFOQ is considered reasonably necessary for the normal operation of a given business. For example, a Catholic college may legally require positions such as president, chaplain, and teacher to be Catholic, but membership in the Catholic Church would generally not be considered a BFOQ for professions such as secretarial and janitorial positions. DISCRIMINATION BASED ON HEALTH AND DISABILITY AND BFOQ: An employer cannot discriminate against a person with a health condition or disability that does not affect a person`s ability to do work appropriately. However, if an employer can prove that there is a physical or mental requirement for a job that is a true professional qualification (BFOQ), they can discriminate. Consider the following two cases. As you can see, the scope of the allowance is quite narrow when it comes to bona fide professional qualifications, and racing is never allowed as a BFOQ. Age: Mandatory retirement age for airline pilots and law enforcement for safety and fitness reasons. Title VII of the Civil Rights Act of 1964 prohibits any employer from refusing to hire, dismiss or otherwise reduce employees on the basis of race, religion, sex and national origin. After the enactment of the law, it was eventually expanded to include discrimination based on a person`s age. Although the law itself prohibits such discrimination, it also includes permissible discrimination, which can be demonstrated in the bona fide qualification exception. Some positions simply require people of a certain age, religion, background or gender.
While we usually want to prohibit hiring or firing because of protected characteristics, in these narrow circumstances, it makes sense to allow employers to effectively discriminate against otherwise qualified individuals. The law allows this type of employment consideration through an exception called good faith professional qualification (BFOQ). In most cases, bona fide professional qualifications apply only if the BFOQ is deemed reasonably necessary in the ordinary course of business or business. For example, an underwear store or brand may only require the hiring of women for positions. While religion, gender, or national origin may be legitimate professional qualifications in some circumstances, race can never be a BFOQ. In the workplace, an employee may discriminate if a requirement or factor in the workplace results in differential treatment due to certain protected characteristics. However, there are exceptions and objections that an employer may raise in response. One of the best ways to understand BFOQ exceptions is to look at examples where the courts have allowed what would otherwise be considered discriminatory: There are situations where discrimination in the workplace is allowed under federal law and New York law. An employer may discriminate if it demonstrates an employment-related legal reason for the discrimination. This is called a bona fide professional qualification or BFOQ.
While religion, gender or national origin can be considered a true professional qualification in narrow contexts, race can never be a BFOQ. However, the First Amendment will prevail over Title VII in artistic works where the employee`s race is an integral part of the history or artistic purpose. [5] (This consideration is not limited to race.) A bilingual job requirement must be assessed on the basis of the candidate`s proficiency in the language and not their national origin.