Excuses Employers Use to Try to Discriminate Legally

We all know that discrimination in the workplace is illegal. But being illegal doesn’t mean that employers do not discriminate. That’s because of one large loophole, or exception, that does, in some cases, allow employers to discriminate legally: it’s called a bona fide occupational qualification, or BFOQ, and it’s one of the most common defenses that employers use when they are sued for discrimination.

What is a BFOQ?

The BFOQ exception allows an employer to legally discriminate if doing so is a necessary part of the job — that is, if the job itself fundamentally requires that someone from a certain race, gender, age, sexuality or nationality, be specifically included or excluded.

As an example, airline pilots are required to retire at age 65; while this may seem like age discrimination, the government believes that for safety, age must be considered in the job. Another example might be requiring a teacher in a religious school to be of that school’s religion.

Unjustified BFOQs

But many employers try to use other excuses, sometimes innocently believing that they are legitimate BFOQs, and other times knowing what they are doing is meritless, but they just want an excuse to exclude a certain class of people.

Previous Experience – One example is where the employer says that it previously hired or worked with people of a given class (gender, age, nationality, etc), and they proved unable to do the job. This is not a BFOQ or a legitimate legal reason to discriminate.

Keeping Women Safe – When it comes to sex and gender, safety often plays a part — the employer will say that the job is “too dangerous” for a woman employee, or that the employer is “protecting” the female employee by not giving her the job.

But this too, is not a BFOQ that justifies discrimination; it is not up to any employer to tell a female job applicant what is and what is not too dangerous for her.

Customer Preference – Employers will often say that customers like, or don’t like or prefer, certain kinds of employees — imagine a kids daycare that only hired younger employees because that’s what kids or their parents like better. Or, a restaurant that will not hire a person who has religious headgear out of fear that customers won’t like it.

Customer preference is not a BFOQ, and employers cannot discriminate just because of what they perceive that their customer base will or will not like.

Vague Terms – Discrimination is often hidden in subjective, descriptive terms that sound like job requirements, but they are not.

For example, an employer might say that a certain gender, race, nationality, accept, or age, is for “professionalism,” or to “seem classier,” or “present a more upscale image.”

These are not job requirements nor are they BFOQs that justify discrimination in the workplace, no matter how strongly the employer might subjectively believe it to be true.  In fact, they just perpetuate discriminatory stereotypes.

Being discriminated against at work? Ask us if your rights are being violated. Contact the San Jose employment attorneys at the Costanzo Law Firm today for help.

Source:

eeoc.gov/laws/guidance/cm-625-bona-fide-occupational-qualifications