The Bona Fide Occupational Qualification Defense

The Two-Part Test for BFOQ Defense

Employers may defend against disparate treatment cases by showing that the basis for the employer’s intentional discrimination is a bona fide occupational qualification (BFOQ) reasonably necessary for the employer’s particular business. This is available only for disparate treatment cases involving gender, religion, and national origin and is not available for race or color. BFOQ is legalized discrimination and, therefore, very narrowly construed by the courts.

To have a successful BFOQ defense, the employer must be able to show that the basis for preferring one group over another goes to the essence of what the employer is in business to do and that predominant attributes of the group discriminated against are at odds with that business. (See Exhibit 2.7 in your book, “BFOQ Test.”) The evidence supporting the qualification must be credible, and not just the employer’s opinion. The employer also must be able to show it would be impractical to determine if each individual member of the group who is discriminated against could qualify for the position.

 For an employer to establish a successful bona fide occupational qualification reasonably necessary for the employer’s particular business that will protect the employer from liability for discrimination, the courts use a two-part test. The employer has the burden of proving that it had reasonable factual cause to believe that all members of a particular group would be unable to perform safely and efficiently the duties of the job involved. This is most effective if the employer has consulted with an expert in the area who provides a scientific basis for the belief. The two-part test must answer the following questions affirmatively:

1. Does the job require that the employee be of one gender?

2. If yes, is that reasonably necessary to the “essence” of the employer’s particular business?

 Southwest conceded that its refusal to hire males were intentional. The airline also conceded that its height weight restrictions would have an adverse impact on male applicants, if actually applied. Southwest contends, however, that the BFOQ exception to Title VII’s ban on gender discrimination justifies its hiring only females for the public contact positions of flight attendant and ticket agent. The BFOQ window through which Southwest attempts to fly permits gender discrimination in situations where the employer can prove that gender is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Southwest reasons it may discriminate against males because its attractive female flight attendants and ticket agents personify the airline’s sexy image and fulfill its public promise to take passengers Skyward with “love.” The airline claims maintenance of its females-only hiring policy is crucial to its continued financial success.

Southwest Airlines Case Study

Since it has been admitted that Southwest discriminates on the basis of gender, the only issue to decide is whether Southwest has proved that being female is a BFOQ reasonably necessary to the normal operation of its particular business.

As an integral part of its youthful, feminine image. Southwest has employed only females in the high customer contact positions of ticket agent and flight attendant. From the start, Southwest’s attractive personnel, dressed in high boots and red outfit, generated public interest and appeal to attract male customers to the airline. Southwest’s flight attendants have been featured in newspaper, magazine, billboard, and television advertisements during the past 10 years. According to Southwest, its female flight attendants have come to “personify” Southwest’s public image.

Southwest has enjoyed enormous success in recent years. From 1979 to 1980, the company’s earnings rose from $17 million to $28 million when most other airlines suffered heavy losses.

The broad scope of Title VII’S coverage contains the BFOQ exception and states:

It shall not be an unlawful employment practice for an employer to him . . . on the basis of his religion, gender. or national origin in those certain instances where religion. gender, or national origin is a bona fide occupational qualification reasonably necessary to the normal Operation of that particular business or enterprise.

This Circuit’s decisions have given rise to a twostep BFOQ test: (1) does the particular job under consideration require that the worker be of one gender only; and if so, (2) is that requirement reasonably necessary to the: “essence” of the employer’s business. The first level of inquiry is designed to test whether gender is so essential to job performance that a member of the Opposite gender simply could not do the same.

To rely on the bona fide occupational qualification exception, an employer has the burden of proving all men would be unable to perform safely and efficiently the duties of the job involved. The second level is designed to assure that the qualification being scrutinized is one so important to the operation of the business that the business would be undermined if employees of the “wrong” gender were hired.

Applying the first level test for a BFOQ to Southwest’s particular operations results in the conclusion that being female is not a qualification required to perform successfully the jobs of flight attendant and ticket agent with Southwest. Like any other airline, Southwest’s primary function is to transport passengers safely and quickly from one point to another. To do this, Southwest employs ticket agents whose primary job duties are to ticket passengers and check baggage, and flight attendants, whose primary duties are to assist passengers during boarding, to instruct passengers in the location and use of aircraft safety equipment. and to serve passengers cocktails and snacks during the airline ‘s short commuter flights. Mechanical, nongender-linked duties dominate both those occupations. Indeed, on Southwest’s short haul connect flights». there is time for little else. That Southwest’s female personnel may perform their mechanical duties “with love” does not change the result. “Love"

Southwest’s argument that its primary function is “to make a profit,” not to transport passengers, must be rejected. Without doubt the goal of every business is to make a profit. For purposes of BFOQ analysis, however, the business” ‘essence” inquiry focuses on the particular service provided and the job tasks and functions involved. not the business goal.

A BFOQ for gender must be denied where gender is merely useful for attracting customers of the opposite gender, but where hiring both genders will not alter or undermine the essential function of the employer’s business. Rejecting a wider BFOQ for gender does not eliminate the commercial exploitation of gender appeal. It only requires consistency with the purposes of Title VII, that employers exploit the attractiveness and allure of its gender-integrated workforce.

 Do you think the standards for BFOQs are too strict? Explain.