Some courts, however, have been quite lenient in this area, allowing employers to succeed with a BFOQ
defense without any scientific proof or psychological testimony of its necessity.
However, the BFOQ
exception is strictly interpreted.
Furthermore, age discrimination legislation in Canada is fairly weak in that it often does not apply to persons beyond the age of 65, and when it does it is often protected by the charter or by exemptions in the case of retirement or pension plans or BFOQs
customer preferences cannot be used as a BFOQ
defense to justify sex
c742 ALI-ABA 735, 743-44 (1992) (discussing the application of the bona fide occupational qualification and citing the standard from Sumitomo which states: "[A]s applied to a Japanese company enjoying rights under Article VIII of the Treaty, [the BFOQ
exception] must be construed in a manner that will give due weight to the Treaty rights and unique requirements of a Japanese company doing business in the United States, including such factors as a person's (1) Japanese linguistic and cultural skills, (2) knowledge of Japanese products, markets, customs, and business practices, (3) familiarity with the personnel and workings of the principal or parent enterprise in Japan, and (4) acceptability to those persons with whom the company or branch does business.
82) helped clarify the parameters of the BFOQ
defense under Title VII.
And really this is not so different from the function of the (generally narrower) BFOQ
exceptions in Title VII or any antidiscrimination statute.
stereotypes migrated from the EEOC guidelines on the BFOQ
(27) to state
Having found facial discrimination, the Court considered and rejected the employer's BFOQ
defense, finding that female sterility was not "reasonably necessary" to the "normal operation" of the business, since it was not necessary to perform the job of making batteries.
An example of a legal ethnicity-based BFOQ
would be a requirement that only a Filipino actor could be hired to play a Filipino role in a movie.
The burden of establishing a BFOQ
is onerous, with the burden on the employer to justify its practice.
100) As I have explained in Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, (101) the BFOQ
defense requires a showing that "sex or [the] sex-differentiated job qualification relates to the essence or the central mission of the employer's business and is objectively and verifiably necessary to the employee's performance of job tasks and responsibilities.