Ohio Employment Discrimination Lawyer Best Answer: What is a bona fide occupational qualification? Is not being pregnant a BFOQ for a strip club? Is there any jobs that employers are allowed to discriminate based on race when hiring?
In this blog, our employment lawyers tackle comic books, Playboy Bunnies, David Hasselhoff, and pregnant strippers. Oh, yeah, and Moses. Doubt me? Keep reading.
As any regular reader of our employment attorneys blogs likely knows by now, employers violate Ohio’s Revised Code § 4112.01, et al or federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA“) when they discriminate against employees or would-be employees on the basis of that person’s race/color, religion, sex /gender, national origin, disability or age. However, in some cases, it is actually legal for an employer to intentionally discriminate.
Employers are permitted to discriminate based on age when hiring older employees over young employees; and when favoring disabled employees over non-disabled employees. (See Reverse Age or Disability Employment Discrimination? No Such Thing.) But what about race discrimination and gender discrimination?
At first, this may seem odd- why would the law ever allow such conduct? However, think about the following scenario: would it be wrong for Playboy Magazine to insist that its Playboy bunnies be (1) female, (2) under the age of say, 70, and (3) not morbidly obese? In just that sentence, Playboy would be discriminating on the basis of gender, age, and possibly disability. Yet, it seems like common sense that these forms of discrimination are reasonable when we are talking about Playboy bunnies, because the look of the employee (or bunny in this case) is critical to what Playboy is selling – female sexuality. Indeed, in Wilson v. Southwest Airlines, the United States District Court for the Northern District Court of Texas held that, at least with respect to adult clubs or Playboy bunnies, “jobs where sex or vicarious sexual recreation is the primary service provided, e.g. a social escort or topless dancer, the job automatically calls for one sex exclusively; the employee’s sex and the service provided are inseparable. Thus, being female has been deemed a [Bona Fide Occupational Qualification (“BFOQ”)] for the position of a Playboy Bunny, female sexuality being reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers.”
This may apply to race in some limited circumstances. For example, an actor hired to play Muhammad Ali has to be Black. An actor hired to play Abraham Lincoln has to be White. But, while this has applied to historical characters, the BFOQ for race for actors will likely falter more when it comes to fictional characters. Take for example, the recent casting of Michael B. Jordon as the previously blond hair, blue eyed Johnny Storm in the Fantastic Four movie or Quvenzhané Wallis as little orphan Annie in the 2014 movie remake. And we can all agree that although Nick Furry was originally a White comic book character, we all prefer Samuel L. Jackson in that role than when David Hasselhoff played the role for the 1998 TV movie. (It’s true). Jordon wrote an article for Entertainment Weekly on race discrimination in the movies, stating: “Sometimes you have to be the person who stands up and says, ‘I’ll be the one to shoulder all this hate. I’ll take the brunt for the next couple of generations.’ I put that responsibility on myself. People are always going to see each other in terms of race, but maybe in the future we won’t talk about it as much. Maybe, if I set an example, Hollywood will start considering more people of color in other prominent roles, and maybe we can reach the people who are stuck in the mindset that ‘it has to be true to the comic book.’ Or maybe we have to reach past them.” Good for Jordon.
And, just for the record, no one ever cared that Charlton Heston and Christian Bale weren’t Jewish when being cast as Moses.
Okay, getting back to more lawish stuff. The BFOQ exception is not a judicially created exception to the law, but is expressly contained in the law itself:
[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise
Ohio law is a little more strict, in the sense that it requires employers who intend to avail themselves of the BFOQ to apply for permission to do so from the Ohio Civil Rights Commission beforehand. See Ohio Administrative Code § 4112-3-15.
However, Courts do not easily find that an employer’s discrimination is justified by a BFOQ. In order to qualify for a BFOQ exception, an employer must demonstrate (1) that the discriminatory criteria involve the essence of the employer’s business, and (2) either that (a) all or substantially all members of the gender excluded by the employer are incapable of performing the job safely and efficiently, or (b) it is impossible or impractical to make determinations of each applicant’s qualifications in a nondiscriminatory manner.
Another case, Diaz v. Pan American World Airways, Inc. provides a good example of this judicial hesitancy to broadly apply the BFOQ exception. In Diaz, the plaintiff was a male applicant for an airline attendant position with Pan-Am airlines who was rejected due to Pan-Am’s policy of only hiring females for the flight attendant position. In its defense, Pan-Am asserted a BFOQ defense. Keeping in mind that this case is from 1971, Pan-Am argued that its own research showed that female employees were better flight attendants. The trial court agreed, reasoning that female flight attendants were better than male flight attendants because Pan-Am’s evidence showed females were better “in the sense that they were superior in such non-mechanical aspects of the job as ‘providing reassurance to anxious passengers, giving courteous personalized service and, in general, making flights as pleasurable as possible within the limitations imposed by aircraft operations.’“ Moreover, the Court found that Pan-Am’s customers (mostly male at that time) overwhelmingly preferred female flight attendants. Diaz appealed.
Unsurprisingly, the U.S. Court of Appeals for the Fifth Circuit saw things a little differently:
discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.
The primary function of an airline is to transport passengers safely from one point to another. While a pleasant environment, enhanced by the obvious cosmetic effect that female stewardesses provide as well as, according to the finding of the trial court, their apparent ability to perform the non-mechanical functions of the job in a more effective manner than most men, may all be important, they are tangential to the essence of the business involved. No one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another. Indeed the record discloses that many airlines including Pan Am have utilized both men and women flight cabin attendants in the past and Pan Am, even at the time of this suit, has 283 male stewards employed on some of its foreign flights.
We do not mean to imply, of course, that Pan Am cannot take into consideration the ability of individuals to perform the non-mechanical functions of the job. What we hold is that because the non-mechanical aspects of the job of flight cabin attendant are not “reasonably necessary to the normal operation” of Pan Am’s business, Pan Am cannot exclude all males simply because most males may not perform adequately.
Of course, this conclusion seems obvious to us now. The Diaz decision is over forty years old, and reflects a time when employers like Pan-Am could credibly make arguments like “the best available initial test for determining whether a particular applicant for employment is likely to have the personality characteristics conducive to high-level performance of the flight attendant’s job as currently defined is consequently the applicant’s biological sex.” Employers know better these days, right?
Not necessarily. Recently, the BFOQ defense was recently raised in a rather offensive manner by a Georgia strip club after one of its former dancers sued it for pregnancy discrimination. The case, Berry v. The Great American Dream, Inc., demonstrates that some employers still don’t get it. Indeed, the club argued that because “sex appeal” was an integral requirement of the job, not being pregnant was a BFOQ for the job of a dancer. However, as the court noted, this argument ignored a crucial fact – that women do not necessarily lack “sex appeal” when they become pregnant. Indeed, in denying the clubs motion for summary judgment, the United States District Court for the Northern District of Georgia noted that several of the plaintiffs’ co-workers had testified that some male customers preferred dancers with “thicker bodies,” and further, that by raising a BFOQ defense, the club had actually made things more difficult for itself:
It is worth noting that, in framing its argument as a BFOQ defense, the Defendant made its job harder. If the Defendant had simply argued – as its Brief suggests – that the Plaintiff was terminated for lack of “sex appeal,” and not due to her pregnancy itself, the issue of whether pregnant dancers necessarily lack “sex appeal” would be irrelevant. The question would simply be whether the Defendant’s stated reason for the termination was its real reason, and the burden would be on the Plaintiff to demonstrate that it was pretext.
The takeaway from all of this is that while the BFOQ exception makes discrimination legal in some cases, it is very, very narrowly construed, and rarely permitted.
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