INTRODUCTION
Title VII states that an employee cannot be treated differently because of sex unless sex is a bona fide occupational qualification (BFOQ). When used as a defense, bona fide occupational qualification (BFOQ) allows an organization to hire and employ individuals on the basis of the qualifications reasonably necessary to the normal operation of that particular business or enterprise. This paper will discuss the necessary steps employers must take in order to justify using sex as a discriminator when hiring employees and review some known cases where BFOQ was used as a defense.
DEFINITIONS
Sex Discrimination is traditionally defined as systematically treating one sex differently from the other. However, discrimination can be further defined by breaking it down into two areas: disparate treatment and disparate impact. Disparate treatment is more commonly known as outright discrimination. It is treating an individual differently than what is fair and just because of race, sex religious beliefs or any other differentiating factor. Disparate impact is discrimination towards a group of employees who are members of the protected class. The protected class is that group of individuals who are protected from discrimination by a federal, state or local statute (Sovereign, p.352).
Everyone is a member of at least one protected class, because gender is a protected class. In Title VII litigation, where the employee’s neutral practice causes the disparate impact, no showing of intent to discriminate is necessary for liability (Kovacic-Fleischer, p.858). In a Title VII case, once a plaintiff has made a prima facie disparate impact case, a defendant can defend by proving that the neutral practice is a “business necessity. If the defendant is able to establish the defense, the plaintiff still has the opportunity to prove that the defendant could achieve the business necessity in a less discriminatory manner. The Bona Fide Occupational Qualification (BFOQ) is contained in Title VII of the Civil Rights Act of 1964. Under this title, employment in particular jobs may not be limited to individuals of a particular sex, religion, or national origin unless the employer can show that one of these factors is an actual and necessary qualification for performing the job.
BFOQ is usually decided on a case-by-case basis. Race is never a BFOQ. When BFOQ is used as a defense, the employer admits sex discrimination but under the terms of the statute it is justified (Sovereign, p.91). The Supreme Court has determined that the BFOQ exception is intended as a narrow exception to the prohibition of sex-based discrimination (Hawke, p.58). Title VII of the Civil Rights Act of 1964 states that it is unlawful for an employer to refuse to hire, discharge or discriminate against an individual because of race, color, religion, sex or national origin. Under Title VII sex discrimination is not unlawful if BFOQ can be proven as necessary for that position.
PROVING DISCRIMINATION
Employee Position Employees alleging discrimination must attempt to prove a prima facie case. Prima facie means that before a person can go to court, it must be shown that a wrong has been committed by stating certain facts (Sovereign, p.38). The employee must show that he is a member of a protected class and has suffered an adverse employment action. An adverse employment action is anything the employer does which affects the employee’s job and is not positive. For example, if an applicant applies for an open position that he is qualified for, is rejected, and that position remains open and the employer continues to seek applicants, this could be discriminatory treatment.
Adverse actions can range from firing, failure to hire, or failure to promote. The employee then has to show that the employer’s reason for the adverse action was not legitimate. This is known as showing that the employer’s reason for not hiring was pretext. Once pretext is proven, then the court would presume that the adverse action was illegal. In some instances, this may not be enough. The employee may still have to provide evidence of discrimination.
Employer’s Position When an employer is accused of discrimination, he must state that there was a legitimate reason for that adverse employment action. The employer may chose from many defenses. One defense may be BFOQ. In using BFOQ as a defense, the employer must show “reasonable necessity” for his actions.
BFOQ’s are limited in scope and the burden of proof falls heavily on the employer. Employers trying to establish a BFOQ based on the privacy rights of their customers, must first prove that the gender-based BFOQ is reasonably necessary to the normal operation of its business. The employer must also show he had a factual basis for believing that hiring members of that sex would undermine business operation. Also, the employer must show that the nature of their business allows no reasonable alternatives to their gender-based classifications that wouldn’t interfere with customer’s privacy rights. A Job qualification can be gender-based only if an employer can prove that all or almost all members of the excluded gender cannot perform the job. If the employer has a job requirement that would eliminate a disproportionate number of one gender or the other, then under the disparate impact analysis, the employer could be ordered to discontinue the practice or accommodate the excluded gender.
If an employer fails to establish a BFOQ, the consequences can be costly. Traditional remedies available in a Title VII action include hiring or reinstating the plaintiff, providing back pay, and granting retroactive seniority (Hawke, p. 59). CASES United States v. Virginia The United States challenged Virginia Military Institute’s (VMI) male- only admissions policy.
Under title VII, an employer who intentionally discriminates on the basis of sex can defend on the ground that a gender qualification is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business”. Courts have held that BFOQ as a defense is narrow and that job qualification must relate to the “essence” of the business. Although VMI is not an employer with respect to its students, the application of Title VII’s BFOQ defense and disparate impact analysis can still be used in this example. The VMI case involves governmental disparate treatment based on gender because the Commonwealth of Virginia intentionally treated women differently from men by excluding them from a military college. VMI openly admitted this disparate treatment in their all-male admissions policy.
VMI argued accommodating women would destroy its adversative method. They attempted to use BFOQ as a defense arguing the necessity of not destroying a method that was essential to its institutional identity. The Court held that VMI had not met its burden of proving the defense, because some women could benefit from the program and the projected negative consequences were speculative and based on stereotypes.
