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BFOQBona Fide Occupational Qualification
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Republican Representative Charles Goodell of New York, the crafter of the BFOQ provision, added this reassuring comment to the House floor debate: There are so many instances where the matter of sex is a bona fide occupational qualification. For instance, I think of an elderly woman who wants a female nurse.
The Wood County Circuit Court upheld the policy, ruling that gender was a bona fide occupational qualification for the job.
Of course, if your church were hiring a priest, you could require that the priest be Catholic rather than Muslim, since religious affiliation would be a bona fide occupational qualification for the job.
A business cannot legally discriminate based on an applicant's gender unless it is a "bona fide occupational qualification," or BFOQ--a necessary requirement for the job, he continued.
The BFQ clause, taken directly from the 'bona fide occupational qualification" language of the 1964 Civil Rights Act, says, "Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education or public contracting." The clause exists to protect women, not to victimize them: It merely prohibits such things as the supervision by men of girls' locker rooms and strip searches of female prison inmates by male guards.
Johnson Controls' fetal protection policy would appear to operate more like overt sex discrimination than like a neutral practice that has a disparate impact on women, because the Pregnancy Discrimination Act states that under Title VII, sex discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions.(9) Thus, the bona fide occupational qualification defense would appear to be more appropriate in this type of case than the business necessity standard.
Thus, an employer will be allowed to impose certain age requirements if that's a bona fide occupational qualification that is reasonably necessary in the normal operation of the business, or where the differentiation is based on reasonable factors other than age.