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Bona fide occupational qualifications are skills, talents or attributes that are necessary in the performance of a job. They’re a significant element of labor law in the United States because they provide an exemption for employers, in certain cases, from charges of illegal discrimination. On the other hand, many job descriptions have successfully been challenged because they included discriminatory job requirements that were not bona fide occupational qualifications.
Before the Civil Rights Act of 1964, employers in the United States had wide latitude in setting forth the qualifications candidates must meet when applying for work. The most common qualifications were gender and race — employers would frequently specify that candidates must be male, or in some cases, female. With respect to race, qualifications were more often exclusionary. Race-based exclusions were more difficult to pinpoint because many employers wouldn’t bother to specify race on a job ad, but they simply wouldn’t hire any candidates that didn’t meet their qualifications.
The Civil Rights Act of 1964 prohibited discrimination in employment on the grounds of religion, sex, race, age and national origin, except where they constituted bona fide occupational qualifications. Thus, employers advertising for secretaries or bookkeepers could no longer specify that only female applicants would be considered, just as nursing would no longer be restricted to women. The rule goes beyond gender and race, though. For example, a religious organization can require that its clergy be members of its denomination, and can also extend that requirement to the teachers in its school. It cannot, however, impose that requirement on groundskeepers or janitorial staff, because their ability to do their jobs wouldn’t be impacted by their membership in one religion or another.
Age-based discrimination is also permitted under certain circumstances. Airlines are able to impose mandatory retirement ages on their pilots because they were able to prove that with age, they lost some of the qualities that made them good pilots when younger, such as reaction time in emergencies, stamina and visual acuity. They are no longer permitted, though, to impose such requirements on their in-flight attendants as gender, height, weight and even marital status. There are bona fide occupational requirements in some public safety jobs as well. For example, physical disabilities are generally grounds for rejecting applicants for many law enforcement and fire fighting jobs, and the departments offering those jobs are permitted to impose maximum age requirements where they’re generally prohibited in most other occupations.
Entertainment is another area where bona fide occupational qualifications may violate discrimination laws. Advertising agencies, for example, can be quite specific in defining qualifications when hiring models, and theatrical and movie companies are permitted to hire actors that conform to characters’ descriptions. Professional and academic sports leagues are also permitted to discriminate on the basis of gender.
Thus, an employer may list any requirements for a job, but if they violate the law, the employer must be prepared to prove that they’re bona fide occupational qualifications in terms of the actual performance of the job. This constitutes a complete defense to charges of discriminatory hiring. On the other hand, employers are permitted to require that job applicants meet other qualifications that have nothing to do with doing the job, as long as they don’t illegally discriminate. An employer may therefore require that applicants for clerical positions have college degrees, or that all applicants submit to credit checks, even if it’s obvious that they have nothing to do with the competent performance of the job.
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