After reading the Case 4-1 Article below? Please answer the following two questions.

1. Is this practice unfairly discriminatory?

2. Is the BFOQ defense legitimate? Why, or why not?

The Bona Fide Occupational Qualification (BFOQ) Defense in Employment Discrimination: A Narrow and Limited Justification Exception Frank J. Cavico, Nova Southeastern University Bahaudin G. Mujtaba, Nova Southeastern University

Abstract

U.S. civil rights laws prohibit discrimination in employment based on the protected categories or characteristics, such as race, color, religion, sex, and national origin. However, the BFOQ doctrine allows an employer to discriminate on the basis of religion, sex, or national origin in certain instances where these dimensions of diversity are a bona fide occupational qualification, meaning that any of these traits are reasonably necessary to the normal operation of doing business. The reality is that most managers are concerned and thus wary of using this doctrine due to its sensitive and complex nature and the fact that it is discrimination. Yet, the BFOQ doctrine can be used successfully in those rare employment circumstances where a discriminatory exclusion is reasonably related to the normal and legitimate operations of the business. This article explains the nature of this doctrine and demonstrates when the BFOQ defense can be used with rational justifications for sustainability of the operation. The authors explain the proper and limited use of the BFOQ doctrine in order to avoid legal liability; and we recommend diversity awareness for the creation of an inclusive and fair workplace.

Key words: Civil Rights Act, discrimination, stereotypes, BFOQ, bona fide occupational qualification, inclusive workplace, diversity.

Introduction

Discrimination against people is not favored legally or ethically in the United States (Muffler, Cavico, and Mujtaba, 2010) or other places around the globe because it is not aligned with the modern workers perception of justice (Huang, Ryan, and Mujtaba, 2015). Accordingly, there are many Civil Rights laws that prohibit discrimination, particularly in employment, based on race, color, religion, gender/sex, national origin, age, disability, or other protected categories. However, embodied in these laws is an exception whereby discrimination based on otherwise protected characteristics may be legal because the very nature of the job requires such characteristics. The main theme of the article, as manifested by the title, is that managers and employers must take heed because the BFOQ defense is a narrow and limited one indeed. 16 The purpose of this article is to explicate this exceptional doctrine, called the bona fide occupational qualification (BFOQ) defense. The article will first provide a general overview of key U.S. Civil Rights laws. Then the BFOQ doctrine is illustrated and explicated in four key categories: gender/sex, religion, national origin, and age. The authors examine the pertinent statutes, administrative rules, case law, and legal commentary. The authors next address the at times confusing relationship between the BFOQ doctrine and the concept of appearance discrimination. Based on the foregoing legal analysis the authors will then discuss the implications of the BFOQ doctrine for managers and employers. Moreover, we discuss the important role that diversity awareness and training can provide to create an inclusive workplace and to ensure legal compliance as well as to achieve an ethical and fair workplace. Based on the aforementioned legal and diversity analysis, we provide suitable recommendations to prevent legal liability. The article concludes with a brief summary for managers, trainers and entrepreneurs.