What is a Bona Fide Occupational Qualification (BFOQ)?

Definition and Purpose of a BFOQ

A bona fide occupational qualification (BFOQ) is a narrow exception in discrimination law that lets an employer limit a job to candidates with a specific protected characteristic when the characteristic connects directly to the job’s core duties. Federal law allows sex, religion, national origin, and age to qualify under this exception, and it bars race and color entirely. A clear example of a valid BFOQ is a requirement that a women’s locker room attendant be female to protect the privacy of patrons who are changing and showering.

An employer who invokes a BFOQ carries a heavy burden, because the decision excludes a protected group that federal law generally shields from discrimination during the hiring process. Employers need to show that one or more of the position’s core duties could not be carried out in a lawful or safe way by members of a particular group, and that adjusting the job duties or schedule would not solve the problem.

Situations Where a BFOQ May Apply

A BFOQ may apply when a job requires a worker to carry out duties that can’t be performed by a person without a specific trait tied to sex, religion, national origin, or age. Only a few types of work fit this standard, and each one ties the restriction to the duties of the position rather than employer preference.

Performance Roles Requiring Authentic Identity

Certain performance roles require the worker to belong to a specific protected group because the job involves portraying a character with defined traits. Authenticity qualifies as a BFOQ only when:

1. The role requires portrayal of a character or figure with a fixed sex or background; and

2. The portrayal cannot be completed in an accurate way without hiring a worker who shares that trait.

One example of a position that might require authenticity is an acting role written for a character with a specific sex or background. A production relies on the actor to present the character as written, and casting a worker who does not share those traits would alter the role. Historical reenactments follow the same structure when the job requires presentation of a specific historical figure whose sex or background is part of the role. The identity requirement flows from the character, not from a preference for one group.

Privacy-Based Staffing Requirements

Jobs that place a worker in private spaces where patrons or patients are undressed sometimes require same-sex staffing to protect privacy. A restriction tied to privacy is justified only when:

1. The duties require entry into areas where patrons, patients, or inmates are undressed; and

2. No adjustment to task assignments or schedules would protect privacy without limiting the position to one sex.

One example of a position that might require same-sex staffing is a locker room attendant, because the job requires entry into changing or shower areas. An employer cannot adjust the task assignments of a locker room attendant to get around privacy concerns without removing core duties from the position.

Safety-Sensitive Age Restrictions

Age can qualify as a BFOQ when the duties of a job create safety risks tied to age. The ADEA permits an age limit for a position only when an employer can meet a two-part test. Employers need to prove:

1. The duties of the position create safety or operational risks that increase with the worker’s age; and

2. Almost all workers above the chosen age would be unable to perform the job safely or no practical testing method could identify which older workers could still perform the job safely.

One example of a position that might have a safety-sensitive age restriction is a commercial pilot. A commercial pilot needs to maintain control of the aircraft for the duration of each flight, and a sudden medical event could prevent that. The risk of a heart attack or stroke increases with age, and a physical exam cannot reliably predict when either type of event could occur. A pilot could pass every required screening and still face an unpredictable medical problem during a flight, so airlines cannot rely on screening procedures to separate safe older pilots from unsafe older pilots.

What Does Not Qualify as a BFOQ

A restriction does not qualify as a BFOQ when an employer excludes a protected group for reasons that have no direct connection to the duties of the job.

Customer Preference

Sometimes employers cite customer comfort as a reason to limit a job to one sex or background. However,federal law does not permit that justification. For example, a restaurant cannot limit its server positions to women because patrons say they prefer to be served by women.

Coworker Preference

Coworker opinions cannot determine who is eligible for a job, and employers cannot preclude members of a protected group because current employees say they do not want to work with them. Personal preferences from coworkers have no connection to the duties of the position and do not justify excluding a protected group. For example, an employer may face pressure from a male crew to keep women off overnight assignments, yet that pressure cannot be used to limit women’s access to overnight shifts.

Cost or Difficulty

Cost or administrative difficulty does not qualify as a BFOQ, and employers cannot limit a job to one group because evaluating all applicants would require extra time or resources. For example, a warehouse cannot decide to hire only men for forklift positions because management believes that training women on the equipment would take more time.

Sexual Stereotypes

A job cannot be limited to one sex because an employer believes that members of that sex are naturally better suited for the work. For example, an employer cannot reserve childcare positions for women based on an assumption that women are more nurturing with children. The duties in a childcare role focus on supervision and safety, and those duties do not require the worker to be female. A sex-based restriction qualifies only when the duties of the job require exclusion of one sex for authenticity or privacy reasons, and childcare does not demand duties of that nature.

Stereotypes About Ability

An employer cannot exclude a protected group from a job based on assumptions about how members of that group perform physical or mental tasks. For example, a company cannot refuse to consider women for a security guard position based on a belief that only men can restrain a suspect. Women are fully capable of performing physical tasks required in security roles, and broad assumptions about strength do not reflect individual ability. The core duties of a security guard focus on monitoring activity and following safety procedures, and each duty can be performed by women.

How Decision-Makers Evaluate a BFOQ

Protected groups receive strong legal protections in hiring, and a BFOQ is the narrow exception that allows an employer to exclude one of those groups. When the EEOC or a court evaluates a BFOQ claim, the review focuses on whether the exclusion is tied to a specific job duty that cannot be performed without the restriction.

Step 1: Identify the Job Duty That Drives the Restriction

The first step requires the employer to identify the specific duty in the job that they believe cannot be performed by members of a particular protected group. The duty has to be central to the position and integral to how the job is carried out, not a secondary responsibility that could be removed or reassigned without altering the role.

One example appears in a women’s correctional facility, where a correctional officer may be required to conduct strip searches of female inmates. Strip searches require officers to view inmates who are undressed, and this duty cannot be removed or reassigned without changing the position itself.

Step 2: Explain Why Members of the Excluded Group Cannot Perform That Duty

The second step examines why the duty identified in step one cannot be assigned to the group that the employer seeks to exclude. An employer’s reason has to be rooted in the way the duty is actually carried out in practice, and not in general beliefs about the excluded group.

In a women’s correctional facility, male officers cannot perform strip searches of female inmates because facility policy bars male officers from performing searches in situations where female inmates are unclothed. The reason to exclude men arises from the privacy rule that controls how the search needs to be completed, not from assumptions about the abilities of male officers.

Step 3: Show Why Job Adjustments Would Not Avoid the Exclusion

The third step looks at whether a change in how the job is structured would allow the duty identified in Step 1 to be performed without excluding the protected group. An employer needs to show that altering the position would remove a core duty or change the role in a way that no longer reflects the job as it is defined.

In a women’s correctional facility, strip searches of female inmates form a core part of the correctional officer position. If the employer removed that duty to make room for male officers, it would create a different job because all officers are expected to complete searches as part of regular supervision. Restructuring the role so that the duty of strip searches is reserved for female officers while all remaining tasks remain open to male officers turns the original position into two separate roles.

Steps Employers Should Take Before Invoking a BFOQ

A BFOQ excludes a protected group from a job, and that decision draws close review.

Before invoking a BFOQ, an employer should:

1. Identify the duty that drives the restriction.

Pinpoint the duty that cannot be performed by the excluded group and confirm that it forms part of the core work in the position.

2. Provide a clear reason why the excluded group cannot perform that duty.

Base the reason on how the duty is carried out and cite the rule or condition that prevents the excluded group from completing it.

3. Evaluate whether changes to the job would avoid the exclusion.

Look at schedule adjustments or redelegation of tasks to determine whether the position can stay intact while opening the role to the excluded group.

4. Document how the decision was reached.

Record the job, the specific duty, the reason for excluding a protected group, and the adjustments considered beforehand, so it is clear that the restriction is tied to the work, rather than to preference or convenience.

Employers that want to tighten BFOQ language in job descriptions or policies, or that face a dispute over a contested BFOQ decision, can contact Conn Maciel Carey, LLP's international labor and employment practice group for help evaluating the risk and adjusting practices to align with current law. Conn Maciel Carey, LLP works with HR teams and in-house counsel to review specific positions and train managers on how to handle BFOQ questions in day-to-day decisions. Group attorneys also help employers with quick response to agency charges or private cases that challenge a BFOQ.

Additional Reading

https://www.eeoc.gov/laws/guidance/cm-625-bona-fide-occupational-qualifications

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.