Bona fide Occupational Qualification – Affirmative Defense against Disparate Treatment

In some cases, as Defendant may have a legitimate and lawful reason to discriminate based on age, sex, or any other protected status.  When a Defendant claims that the decision to take an adverse employment action against plaintiff  was lawful because Defendant was entitled to consider the  protected status as a job requirement, the Defendant is bringing up a bona fide occupational qualification affirmative defense. 

In order to prove the affirmative defense, the Defendant will have to prove each of the following elements the defense:
  1.  That the job requirement was reasonably necessary for the operation of Defendant’s business;
  2.  That defendant had a reasonable basis for believing that substantially all members of such protected group are unable to safely and efficiently perform that job;
  3. That it was impossible or highly impractical to consider whether each member of the protected group was able to safely and efficiently able perform the job; and
  4. That it was impossible or highly impractical for defendant to rearrange job responsibilities to avoid using the protected status as a job requirement.

 

The source of the bona fide occupational qualification is Ca Gov’t Code section 12940, which provides that certain discriminatory employment practices are not unlawful if “based upon a bona fide occupational qualification.”

The Fair Employment and Housing Commission’s regulations provide: “Where an employer … has a practice which on its face excludes an entire group of individuals on a basis enumerated in the [FEHA], … the employer … must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.” (Cal. Code Regs., tit. 2, § 7286.7(a).)

Federal title VII provides that “a bona fide occupational qualification [is] reasonably necessary to the normal operation of [the] particular business or enterprise.” (42 U.S.C. § 2000e-2(e)(1).)

The BFOQ defense is a narrow exception to the general prohibition on discrimination. ( Bohemian Club v. Fair Employment & Housing Com. (1986) 187 Cal.App.3d 1, 19 [231 Cal.Rptr. 769] ; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc. (1991) 499 U.S. 187, 201 [111 S.Ct. 1196, 113 L.Ed.2d 158] .)

 

” ‘[I]n order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.’ ” ( Bohemian Club, supra, 187 Cal.App.3d at p. 19 , quoting Weeks v. Southern Bell Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, 235 .)

“First, the employer must demonstrate that the occupational qualification is ‘reasonably necessary to the normal operation of [the] particular business.’ Secondly, the employer must show that the categorical exclusion based on [the] protected class characteristic is justified, i.e., that ‘all or substantially all’ of the persons with the subject class characteristic fail to satisfy the occupational qualification.” ( Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158] , quoting Weeks, supra, 408 F.2d at p. 235 .)

“Even if an employer can demonstrate that certain jobs require members of one sex, the employer must also ‘bear the burden of proving that because of the nature of the operation of the business they could not rearrange job responsibilities …’ in order to reduce the BFOQ necessity.” ( Johnson Controls, Inc., supra, 218 Cal.App.3d at p. 541 ; see Hardin v. Stynchcomb (11th Cir. 1982) 691 F.2d 1364, 1370-1371 .)

“Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is ‘impossible or highly impractical’ to deal with the older employees on an individualized basis.” ( Western Airlines, Inc. v. Criswell (1985) 472 U.S. 400, 414-415 [105 S.Ct. 2743, 86 L.Ed.2d 321] , internal citation and footnote omitted.)

“The Fair Employment and Housing Commission has interpreted the BFOQ defense in a manner incorporating all of the federal requirements necessary for its establishment. … [P] The standards of the Commission are … in harmony with federal law regarding the availability of a BFOQ defense.” ( Bohemian Club, supra, 187 Cal.App.3d at p. 19 .)

“By modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term to qualifications that affect an employee’s ability to do the job.” ( International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, supra, 499 U.S. at p. 201. )

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