The Bona Fide Occupational Qualification in Employment Law

By hrlineup | 09.01.2022

When creating a strong team, you may need to choose members of the team based on specific criteria. These criteria are chosen to make sure that one finds the right candidate for the job requirements.  Generally, the qualifications for the job may include certain factors such as country of origin, gender or even the age of the individual.

The challenge that an employer may face is proving that the criteria laid out for the job are necessary for the role to be properly carried put. This is what is known as Bona Fide Occupational Qualifications (BFOQ).

BFOQ can be understood well through an example. Consider recruiting for a company in security forces. The potential candidates possibly need to meet criteria when it comes to height and weight, fitness, eyesight, hearing and more. In schools, teachers of a specific gender may be required, such as a female teacher for sensitive subjects in an all girl school. When it is clear what criteria are required for the hire, then an employer can easily make use of the bona fide occupational qualification.

Discrimination and the Bona Fide Occupational Qualification

A key factor that needs to be clarified with the BFOQ is that it can be considered to be discriminatory. This is because it spells out that a person needs to have a specific characteristic in order to get the job in question. An employer may use the bona fide occupational qualification when looking to fill positions that may have issues with safety for example.

To ensure that employers using the BFOQ are not accused of being discriminatory, the following can be taken into consideration: –

  • Showing that the need can be verified. Within reason, it should be necessary.
  • It should be reflective of a condition that almost all employees would accept as a part of the belief of the company. This means that it should be viewed as necessary.
  • With testing, the belief should be able to be proven. This allows the BFOQ to be backed with research as well as data to be generated.

BFOQ is sensitive in nature, and therefore subject to some objections from employees, both potential and existing. In the event that someone attempts to legally engage with a company using a BFOQ on the basis of discrimination, it will be worth the company or recruiter to engage a qualified lawyer. As there numerous loop holes or gray areas within a BFOQ, an experienced lawyer will have the necessary skills to navigate complex employment law.

Since its inception, the BFOQ continues to be important for women in the work place. Feminists over time have been able to amend the way that these are written, to ensure that there are less professions that are highly stereotypical. When creating or evaluating job requirements, a recruiter needs to be careful with the BFOQ. It should only be included if it is absolutely essential, otherwise, positions should be open to all types of applicants.

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