Preventing Workplace Harassment, Discrimination, and Retaliation

successfully demonstrate that an employment practice is job-related and a business necessity, the employer must show that the employment practice is necessary and bears a manifest relation to the employment at issue. 78

2. B ONA F IDE O CCUPATIONAL Q UALIFICATION D EFENSE An employment policy or practice may also be justified if it qualifies as a bona fide occupational qualification (BFOQ). 79 To qualify as a valid BFOQ, the employment policy or practice must affect an employee’s ability to perform the job and must relate to the essence or to the central mission of the employer’s business. 80 The BFOQ defense is a very narrowly drawn exception to discriminatory employment policies or practices. Courts have rejected BFOQ defenses based on sex where there is insufficient evidence that the excluded sex cannot adequately perform the work. For instance, a court held that being male was not a BFOQ for the job of truck driver where there was no evidence that women could not perform the job. 81 Courts have also rejected the BFOQ defense based on third-party preference. For example, in Lam v. University of Hawaii , the court held that alleged “Japanese cultural preferences” for male authority figures did not qualify as a BFOQ for the position of Director of Pacific Asian Legal Studies at a law school. The court expressly rejected such third-party preferences as justification for discriminatory hiring practices. 82

Case Study on Bona Fide Occupational Qualification Defense

Teamsters Local Union No. 117 v. Washington Department of Corrections 83 Employer’s women’s prisons wrestled with problems of sexual abuse, guard misconduct, breaches of inmate privacy and other security concerns. After it commissioned a comprehensive study of these issues, it designated 110 guard positions as women-only. Male guards sued. The Court determined that Employer’s designation was appropriate and that gender, in this instance, is a valid BFOQ because there was objective evidence (the study) showing that gender would improve security, sexual abuse, and privacy problems and these issues were central to Employer’s business.

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 20