BFOQ FTW

January 04, 2015 - by: Brian Kurtz 0 COMMENTS

YOU are a seasoned HR pro.  YOU understand the difference between Internet slang–omg, imho, lmao–and the Title VII defense of BFOQ.  We must discuss the BFOQ exception–bona fide occupational qualification–in the wake of the Abu Dhabi adventures of actress, singer, and ex-Biebs girl Selena Gomez.  ICYMI (see what I did there?), a picture surfaced of Gomez in a mosque taken while she and some pals were vacationing in Abu Dhabi. In the photo, Gomez clearly flashes her (NSFW alert) … ankle. shutterstock_194149595

Context is important. Gomez was a female in a mosque in the United Arab Emirates. Mosque rules prohibit “intimate behavior,” including a female’s failure to wear ankle-length garments. Could a U.S. employer refuse to hire or employ a female because it did business in Arab countries with decisionmakers who were devout Muslims?

The BFOQ exception essentially permits an employer to discriminate by recognizing that there are certain job requirements that are not compatible with a person’s gender, religion, etc. The exception is race; the BFOQ defense does not apply in a race discrimination case.  There are not a lot of BFOQ cases out there, but two decisions from the 1980s demonstrate what distinguishes a successful BFOQ defense from a flawed one.

In a 1983 Texas decision, an employer lawfully terminated a helicopter pilot who refused to convert to Islam. The facts in that case were unique. The pilot was tasked with flying passengers in and out of Mecca, Saudi Arabia. At the time, a non-Muslim flying into Mecca was subject to beheading under Saudi law! By contrast, gender preferences of customers or business partners are generally not sufficient to establish the BFOQ defense. In a 1981 California case, an employer’s BFOQ defense was rejected. The company failed to promote a female candidate in part because of its subjective belief that its South American clientele would not prefer to do business with a female executive.

The success of the BFOQ defense will turn on whether the employer has a basis in fact for discriminating against an employee or applicant. Courts examine whether the employer’s rationale is objective, i.e., avoiding legally sanctioned beheadings, or subjective, i.e., perceived customer preference. In the former case, the courts will likely be sympathetic.  In the latter, well … smh.

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