Bona Fide Occupational Qualification

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Bona Fide Occupational Qualification

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 tha...

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...Fine Line: Patient Privacy and Sex Discrimination”. Nursing Management, Chicago, October 1998, Volume 29, Issue 10, pp. 56-61.

Kovacic-Fleischer, Candance Saari. “United States v. Virginia’s New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting, and Title VII”. Vanderbilt Law Review, Nashville, May 1997, Volume 50, Issue 4, pp. 845-915.

Reiland, Ralph R. “Save Millions in Damages, Go Topless”. Restaurant Hospitality, Cleveland, November 1997, Volume 81, Issue 11, pp. 152-154.

Sovereign, Kenneth L., Personnel Law, Fourth Edition, 1999, pp 38,91-92,352.

EEOC Guidelines On Sex Discrimination, http://www.lalabor.com/

Office of Equal Employment Opportunity, Discrimination Based on Gender or Sexual Orientation, http://www.niehs.nih.gov/oeeo/sex.htm/

Proving Discrimination, http://www.discriminationattorney.com/providing.htm/

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