What is a bona fide occupational qualification (BFOQ)?

While hiring, companies must balance selecting the right candidates with complying with anti-discrimination laws. While equal opportunity is the foundation of fair hiring practices, there are times when specific requirements are necessary to perform a certain job. This is where bona fide occupational qualifications (BFOQs) come into play.

HR teams use BFOQs to make hiring decisions without violating equal employment opportunity laws and other anti-discrimination regulations. BFOQ regulations clarify the United States’ legal definition of necessary qualifications for specific roles. Other countries have similar laws, such as the United Kingdom’s genuine occupational qualifications (GOQs).

This article will review bona fide occupational qualification laws in the US, how to maintain compliance, and when to use BFOQs during the hiring process.

What is a bona fide occupational qualification (BFOQ)?

Title VII of the Civil Rights Act prohibits “discrimination based on race, color, religion, sex, and national origin.” However, in some cases, businesses must consider these traits due to their essential nature for organizational operations or a position’s essential functions. A bona fide occupational qualification is an attribute or quality employers lawfully consider during hiring. 

For example, a church may use faith as a BFOQ, since a lack of belief can affect the church’s normal functioning as a house of worship.

Why HR teams need to understand BFOQs

BFOQs are important because they help navigate the fine line between lawful hiring practices and potential discrimination. Properly applying BFOQs ensures organizations can fill roles with the necessary qualifications while staying compliant with equal employment opportunity laws. This understanding helps HR teams protect the company from legal risks, foster inclusivity, and build a fair, diverse workplace culture. 

Laws impacting bona fide occupational qualifications

Several laws affect BFOQs and their practical applications.

Equal Employment Opportunity (EEO)

EEO laws protect applicants and team members from discrimination based on many attributes, including:

• Race
• Color
• Religion
• Sex
• National origin
• Disability
• Genetics
• Age
• Retaliation
• Veteran status

These laws vary slightly for private, governmental, and educational positions and for people receiving government assistance. 

BFOQs are exceptions to anti-discrimination laws. 42 U.S. Code § 2000e-2 allows employers to discriminate if the qualifications on which they base such discrimination are necessary for the normal operation of their business. Fire departments, for example, may consider physical strength a BFOQ when hiring firefighters, since they must be able to carry people from burning buildings to safety.

Age Discrimination in Employment Act of 1967 (ADEA)

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits arbitrary age discrimination. The law promotes employment based on ability rather than age. The U.S. government created this law to protect older workers facing disadvantages in job applications.

However, SEC. 623.f.1 of the ADEA specifies that it’s not unlawful for employers to discriminate based on age when age is considered a bona fide occupational qualification. Bus drivers, for example, have maximum age requirements in certain jurisdictions. 

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 protects citizens from discriminatory acts based on race, color, religion, sex, and national origin, including intentional acts or neutral policies that disproportionately exclude minorities. 

Section 703 of the Civil Rights Act says discrimination based on BFOQs is not unlawful. Gender, for example, is a valid BFOQ for actors or actresses if a role’s gender is an integral part of the story. 

When bona fide occupational qualifications are acceptable

The following BFOQ examples will illustrate when employers can and cannot hire based on bona fide occupational qualifications.

Bona fide occupational qualification examples

BFOQs are only acceptable hiring conditions when the normal functioning of the job requires those qualifications. Examples include: 

• Pilots: The Federal Aviation Administration enforces a maximum age of 65 for commercial airline pilots since the job requires candidates to meet certain safety standards. Airlines are allowed to use age as a BFOQ because of common age-related declines in physical or mental functioning such as worsening eyesight or the onset of dementia. 
• Churches and other religious organizations: Religious organizations can refuse to hire nonbelievers if a lack of belief impedes operations.
• Actors, dancers, and models: Employers of models and actors may choose candidates based on qualifications like age, gender, or race if a role specifies those attributes and if they’re integral to the story or artistic purpose. 
• First responders: First responder positions often have weight-carrying requirements as a bona fide occupational qualification. They must be able to safely and effectively perform physically demanding tasks, like carrying heavy equipment, lifting or transporting individuals, and navigating challenging environments during emergencies.
• Security hospital treatment assistants: For privacy reasons, psychiatric hospitals may require that hospital wards have at least one assistant of the same gender as the ward’s patients.

Invalid example of BFOQs

Not all BFOQs are justified. Here are some examples of invalid BFOQs:

• Hiring based on customer preference (e.g., hiring only female flight attendants)
• Setting younger age restrictions for jobs involving heavy lifting
• Eliminating a candidate with a strong accent
• Hiring only one gender to avoid building separate facilities for male and female team members
• Claiming a job is too dangerous or unpleasant for women (e.g., jobs that require late shifts or heavy lifting)
• Conflating language and nationality (e.g., insisting a candidate be from Spain if the job requires they speak fluent Spanish)
• Hiring based on personal preference (e.g., having a preference for team members of a certain gender, religious affiliation, etc.)

Discriminating based on a disability is not compliant with employment laws. The Americans with Disabilities Act (ADA) protects those with disabilities from employment discrimination if they meet all the job’s requirements and can perform all tasks with or without reasonable accommodation, including modified work schedules or facilities.

How to maintain compliance with bona fide occupational qualifications

Avoid malicious or unintentional discrimination and protect prospective team members with these BFOQ best practices. 

1. Document your decision process

HR can help hiring teams keep careful documentation of the hiring process. Documentation includes job descriptions, research on the position and related BFOQs, and communications between the hiring team and applicants.

Regular, detailed documentation facilitates stronger communication between HR and the hiring teams, supports informed decisions, and encourages accountability to applicable laws and regulations. 

HR teams can use secure HR software or encrypted cloud services to keep documentation secure. Consider using an applicant tracking system (ATS) to standardize the hiring process for all candidates. 

2. Identify why the situation falls under BFOQs

Start this process by defining the intrinsic, essential nature of the business and how the lack of a BFOQ for this role might undermine the normal workings of the organization. Review the job description to ensure accuracy and that it doesn’t contain unintentionally discriminatory qualifications.

3. Consider alternative options to fulfill the job role

Conduct a thorough investigation into whether or not the qualifications are necessary. HR teams can research whether someone without the essential characteristic has ever accomplished the job, either within the organization or at another company.

You can also interview people who have filled the role before. Ask them about their experience, the requirements of the position, and whether the BFOQ is necessary to complete the job’s functions successfully.

Examples of alternative options include: 

• Providing reasonable accommodations like modified schedules
• Having someone else on a team do heavy lifting if a candidate can accomplish all other job functions
• Implementing specialized equipment or facilities 

4. Update your BFOQ policies often to remain compliant

Review equal opportunity employment laws and regulations regularly as well as the company’s BFOQ policies. Determine if any legal requirements have changed and whether a BFOQ applies to your positions. If legal changes affect your BFOQ policies, update them to maintain compliance and ensure a fair hiring process. 

To maintain a culture of diversity, equity, and inclusion (DEI), conduct regular DEI audits of all your hiring and employment practices.

Navigate the complexities of BFOQs

HR teams can build a fair and equitable workplace by keeping up-to-date with current laws and regulations and conducting regular reviews of a company’s or position’s occupational requirements. If your company utilizes BFOQs for any positions, include regular reviews of company policies as part of your HR strategy.

You can also use HR software to streamline research and documentation processes. Automated HR tools and secure data storage can optimize hiring processes and support compliance with applicable bona fide occupational qualifications and equal opportunity employment laws.

BFOQ FAQs

Is gender a bona fide occupational qualification?

Gender is only a BFOQ in specific situations. Hospitals, for example, can require that at least one on-duty ward assistant be of the same gender as the ward’s occupants if required for privacy reasons. Positions for actors, models, or ballet dancers may also utilize valid BFOQs if their role specifies that gender as an essential part of the story or position. 

Understanding when gender is a valid BFOQ can help you ensure equitable hiring practices related to gender, including non-binary gender inclusion.

Can religion be a BFOQ?

Religion is a valid BFOQ for houses of worship or other religious organizations for which shared faith is essential for the functioning of the position and organization. However, business owners can’t restrict positions to people who share their faith if that faith isn’t essential to standard organizational operations.

Is age a BFOQ for airline pilots?

You can set age requirements for commercial airline pilots and bus drivers since candidates must meet certain requirements to keep others safe. Pilots must be younger than 65 to prevent risk to passengers due to age-related decline in physical or mental functioning.

What is a BFOQ in healthcare?

Healthcare organizations can reasonably utilize BFOQs in hiring if the presence of certain genders is necessary to ensure patients’ privacy. For example, hospitals may require that at least one assistant present on a ward be of the same gender as the patients in that ward. 

In certain instances, nursing homes may also use gender as a BFOQ if a position involves physical contact with residents. This is particularly true if the majority of residents are women who would not consent to physical contact with a man.

What is an example of a bona fide occupational requirement?

Some businesses may reasonably implement BFOQs for certain positions. Commercial pilots, for example, must be younger than 65 to meet safety requirements. Fire departments may hire based on physical BFOQs like the ability to lift a certain weight so firefighters can carry people from burning buildings.