Employment Discrimination and the Bona Fide Occupation Qualification

The Civil Rights Act of 1964 is a landmark civil rights and labor law that was proposed by President John F. Kennedy and signed by President Lyndon B. Johnson to outlaw the discrimination and segregation at workplace.

In 1965, the law also established a government agency known as the United States Equal Employment Opportunity Commission (EEOC) to enforce the provisions under the Civil Rights Act. This agency is responsible for administering and investigating priority cases of discrimination. The agency also arranges for an out-of-court settlement as part of its mediation process. If such types of settlements are unattainable, the EEOC may file lawsuit against the employer on behalf of the employee.

Title VII

Title VII, which is the seventh amendment of the Civil Rights Act, prohibits employment discrimination in the form of hiring, firing, compensation, benefits, work assignments, transfer, promotions and layoffs by providing protection classes under the following categories to the employees:

• Race
• Color
• Religion
• Sex
• National origin
• Pregnancy (this was added after amendment to the Act in 1978)

According to Guerin & Barreiro (2019), Title VII provides coverage to the following employers:

-          Private employers with 15 or more employees

-          The federal government

-          State and local governments

-          Private and public employment agencies

-          Labor organizations, and

-          Joint labor/management committees

The coverage also includes multinational employers who operate in the United States or its territories as well as companies that were incorporated in the United States or controlled by a U.S company but have operations in the other countries.

Title VII Exceptions

There are also exceptions to the Civil Rights Act to benefit the employers. The Act provides employers defense justification to discrimination on the basis of gender, religion, and national origin, excluding race or color. According to Miller (2017), employers can defend themselves against allegations of employment discrimination based on the following reasons:

• Business Necessity- where the employer is able to justify the discrimination was solely based on job performance
• Bona Fide Occupational Qualification- where the employer is able to identify specific characteristic necessary to perform the job
• Seniority Systems- where the employer is able to justify that promotion, salary increase and other benefits are based on seniority or employment tenure of the employee

Bona Fide Occupational Qualification

A bona fide occupational qualification (BFOQ) defense, in particular, “is a legally sanctioned exception from the general obligation of employers to evaluate each job seeker or employee on individual qualifications” (Schachter, 2013). As such, an employer’s treatment of a member of the protected group is justifiable as long as the employer’s actions were based on gender, national origin, and religion of the employee but not race. 

BFOQ Case

The BFOQ defense was first used in legal proceedings of Dothard v. Rawlinson case in 1977 where the Alabama state imposed height and weight restrictions of 5feet 2 inches and 120 pounds respectively to be considered an applicant for the prison guard position.

Dianne Kimberly Rawlinson applied for this position with Alabama’s Department of Corrections. She later filed a case action suit against the state of Alabama after her employment application for the position of prison guard was rejected based on her failure to meet the statutory minimum height and weight requirements.

Rawlinson’s class action under Title VII of the Civil Rights Act of 1964 alleged that “she had been denied employment because of her sex, in violation of federal law” (LexisNexis, n.d.).

Immediately after the suit was filed, the Alabama Board of Corrections “adopted a rule banning women from working in “contact positions” that require close physical proximity to inmates” (Oyez, n.d.). This regulation was aimed to create male only and female only positions and was indirectly targeted to exclude women from approximately 75 percent of the jobs within the department. Following this, Rawlinson’s amended her suit to challenge the new rule and claimed that the new regulation violated federal law.

BFOQ Case Outcome

The Dothard v. Rawlinson case initially went through the U.S. District Court for the Middle District of Alabama for judgement and it was ruled in favor of Rawlinson. The lower court decided that Alabama Department of Corrections violated Title VII provisions by creating barriers to employment by imposing the height and weight restrictions on candidates.

The Alabama state then directly appealed the ruling to the U.S. Supreme Court, claiming that height and weight restrictions, and the “contact position” as a bona fide occupational qualification as strength and size was a requirement to maintain security and order over inmates in prison.

In passing the judgement, the court ruled 8 to 1 in favor of Rawlinson on the issue of height and weight requirements. The court cited that the Alabama Board of Corrections’ height and weight requirements violated Title VII because, based on the evidence provided by Rawlinson to the court, the minimum employment requirement excluded “41.13 percent of the United States female population but less than 1 percent of its male population” (Quimbee, 2007). The Alabama Board of Corrections, on the other hand, was unable to prove that this requirement was work related.

Furthermore, the court ruled 6 to 3 in favor of the Alabama Board of Corrections on the issue of “contact positions”. The court cited that Alabama’s BFOQ defense was legitimate as it did not violate the provision of Title VII and having female prison guards in close proximity to male inmates would create safety and security risks. This is because female prison guards are more vulnerable to sexual attacks from male inmates compared to male prison guards. 

BFOQ Exception Use in Today’s World

The above case of Dothard v. Rawlinson and the courts’ ruling was a landmark decision that opened the doors for female applicants to get hired in law enforcement jobs that was once considered a male dominated field of employment.

The application of Title VII requires a threshold of 15 or more employees. However in 2003, the “U.S. Court of Appeals for the Third Circuit adopted a three factor test” (Outwater, 2003) in Nesbit v. Gears Unlimited, Inc. case to determine whether combining the affiliates of a company to meet the employee threshold of 15 was permissible. The three factor test considered: (i) whether the company created separate entities of less than 15 employees to evade Title VII; (ii) whether the parent company provided direction to its subsidiary to practice the discriminatory act; or (iii) whether the business activities of all the entities are linked in creating the alleged discriminatory practice.

Even though the courts’ ruling dismissed the three factor test under Title VII in the case of Nesbit v. Gears Unlimited, Inc., it did set a clear path for employers with less than 15 employees to rightfully comply with federal anti-discrimination laws.

In my opinion, the BFOQ exceptions to employment discrimination should be completely abolished because it provides unwarranted protection to employers and unfair advantage to “legally” practice discriminatory acts at workplace. Today, there are numerous legal protections available to safeguard employee interests but more legislations may be required in future as the advancement in technology may lead to more discriminatory practices by employers to downsize the workforce.

References

• Guerin, L., & Barreiro, S. (2019). CHAPTER 18: Title VII of the Civil Rights Act of 1964 (Title VII). Essential Guide to Federal Employment Laws, 365–394. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=lir&AN=136397081&site=eds-live
• LexisNexis. (n.d.). Law School Case Brief- Dothard v. Rawlinson - 433 U.S. 321, 97 S. Ct. 2720 (1977). Retrieved from https://www.lexisnexis.com/community/casebrief/p/casebrief-dothard-v-rawlinson
• Miller, R. L. (2017). Business Law Today: The essentials: Text and summarized cases (11th ed.). South Melbourne, Australia: Cengage Learning. ISBN 9781305574793
• Oyez. (n.d.). Dothard v. Rawlinson. Retrieved January 20, 2020, from https://www.oyez.org/cases/1976/76-422
• Outwater, L. (2003). Affiliates May be Consolidated When Counting Employees for the Title VII Coverage, Says Federal Court. Retrieved from https://www.jacksonlewis.com/resources-publication/affiliates-may-be-consolidated-when-counting-employees-title-vii-coverage-says-federal-court
• Quimbee. (2007). Dothard v. Rawlinson. United States Supreme Court. 433 U.S. 321 (1977). Retrieved from https://www.quimbee.com/cases/dothard-v-rawlinson
• Schachter, H. L. (2013). Constructing Age through Bona Fide Occupational Qualifications: De Jure Discrimination’s Last Stand? Public Administration Quarterly, 37(3), 373. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=edsjsr&AN=edsjsr.24372112&site=eds-live