Bona Fide Occupational Qualification

Where the exception comes from

Title VII of the Civil Rights Act of 1964 allows a BFOQ defense for religion, sex and national origin. The Age Discrimination in Employment Act has a similar defense for age. Title VII has no BFOQ for race or color under any circumstances.

Courts read the exception very narrowly. The employer has to show that the characteristic goes to the essence of the business, and usually that all or substantially all people excluded could not do the job safely and efficiently, or that individual testing is impossible or impractical. A rule based on stereotypes about what a group can do fails that test.

BFOQ examples that have held up, and ones that have not

Situations where a BFOQ has been accepted include:

• Casting an actor or model of a particular sex for authenticity in a role.
• Some personal privacy roles, such as restroom attendants or certain positions involving body searches.
• Some security roles in prisons where courts found sex was a valid qualification on the specific facts.
• Mandatory retirement or age limits set by federal safety rules, such as the age limit for commercial airline pilots.

Situations where it was rejected include hiring only women as flight attendants because customers preferred them (Diaz v. Pan American, 1971) and excluding fertile women from jobs with lead exposure (UAW v. Johnson Controls, 1991). Customer preference, coworker preference and higher costs are not enough.

Religious organizations have a separate exemption allowing them to prefer members of their own religion, which is different from the BFOQ defense.

What this means for recruiters

In practice, almost no ordinary job qualifies. Job postings that ask for a particular sex, age range or nationality, or screening rules that exclude them, are a fast route to a discrimination charge. If a hiring manager says a role needs, for example, a female agent for a women's health line, the right answer is usually to hire for the skills involved, and get legal advice before treating any characteristic as a requirement. Language skill is a job requirement you can screen for; national origin is not. Rules vary by state, and state law may be stricter.