Understanding How BFOQ Affects Hiring in Your Small Business

A small business is affected by Bona Fide Occupation Qualification (BFOQ) dynamics in several ways. Below are some of the topics and issues BFOQ generates with regards to 
hiring practices:

•Limited labor pool of qualified candidates
•Task of distinguishing essential vs. desirable candidate qualifications or traits
•Business credibility among customers
•Employer’s burden of proof in claiming a discriminatory hiring practice is within bounds of BFOQ
•Invoking BFOQ as defense of hiring practices based on stereotypes

Limited Labor Pool
An employer seeking to hire candidates with a BFOQ will face a relatively small labor pool. Businesses should be careful in discriminatory with the BFOQ justification for one type of job, but then expanding their hires to include individuals without the “occupational qualifications” for a very similar job later. Doing so alleviates upward wage pressure caused by tighter labor supply, but it opens the employer to discrimination claims for the earlier, allegedly-BFOQ hires. 

Essential vs. Desirable Qualifications
While employers are free to hire the best available job candidates when multiple applicants seem fit for a job, such “best” qualifiers can’t be a function of discrimination or prejudice on the employer’s part. For instance, an employer may prefer an attractive office assistant as opposed to an unattractive one. The employer cannot claim BFOQ legitimacy and discriminate against physically unattractive applicants, since attractiveness is not a critical requirement of office assistant job duties. However, BFOQ discrimination on the same basis would be legitimate for a modeling agency since “attractiveness” is a key component of what the modeling employee must be or do in order to successfully perform the job.

Credibility and Reputation
Customers may be reassured if an employer hires based on legitimate BFOQ since those customers have more assurance that the product/service in question is made by qualified personnel. However, public perception can backfire if a small business is perceived to discriminate based on hostile intent or prejudice even if no such intent or prejudice exists.

Burden of Proof
Employers should be clear in the job tasks to be performed and qualifications a candidate must have to do the job in question. This is to provide a clearer defense of legitimate BFOQ discrimination in case a lawsuit over hiring practices arises. See Meacham v. Knolls Atomic Power Laboratory.

Qualifications vs. Stereotypes
Lastly, BFOQ is a defense of discrimination based on objective, measurable qualities. Stereotypes and generalizations about various age groups, races and genders abound. In order to successfully claim BFOQ legitimacy, a small business should be as clear as possible in its requirements for a job and how it evaluates applicants.

Used properly, BFOQ provides a critical defense where market demand and job tasks necessitate a type of discrimination that would otherwise be illegal. Small business owners should know that in some situations, BFOQ can get complicated and difficult to predict or intuit. An employer who discriminates in hiring is vulnerable to lawsuits if a BFOQ is proven to be faulty or insufficiently related to the core duties of a given job.

Information provided by Nova Southeastern University, a university specializing in online employment law.

About the author

Informational credit to Des Plaines Office Equipment Company, a Chicago based Office Equipment specialist company hat provides business solutions to reduce company cost and increase productivity through customization of printers, copiers, networking services, IT, and DPOE solutions.

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