BUSINESS LAW 101
Exceptions to the Civil Rights Act
KONK LIFE COLUMNIST
There are exceptions to the Civil Rights Act. If an employee makes a claim of discrimination, the employer can prevail if they can show that the discriminatory practice is a Bona Fide Occupational Qualification (BFOQ). This means that the protected trait (sex, race, national origin or religion) is necessary to do the job. If the practice (or trait) is a true BFOQ, it will be allowed.
How can a discriminatory behavior be an occupational qualification? Let me give a real life example. A few years ago, a group of men filed suit against the Hooters restaurant chain alleging that Hooters practiced discrimination by not hiring the men to be waiters. While the restaurant would hire men to work as kitchen staff, they only hired women for the wait staff. The men argued that waiters have the potential to make higher incomes than the kitchen staff. They argued that this was discriminatory as you do not have to be a woman to serve food and beverages.
The restaurant claimed that sex was a true BFOQ. They argued that customers didn’t really go to the restaurant for the food (no big surprise there); they went there for the ambiance, mainly to see women in short shorts and tight tops. The restaurant argued that if they were required to bring in male waiters, it would destroy the main theme of their business.
This was similar to an argument raised years earlier when the airline industry was sued for not hiring men as stewards. The airlines had argued that women had a calming influence over the passengers. The court, however, stated that the “calming influence” was not the central part of the stewardess job; serving drinks and giving safety instructions were. This could be done just as easily by men as by women. Thus, sex was not a BFOQ. The airlines lost.
Unfortunately before the court could rule on the Hooters case, the parties reached a settlement so the answer will never be known. Hooters did, however, make some front of the house positions gender neutral.
Religion may be deemed a BFOQ if the employer is a religious organization. For example, a Roman Catholic school can require its principal to be Catholic. Even National Origin can be a BFOQ. A French restaurant was allowed to only hire French chefs. Race, however, can never be a BFOQ (There is a First Amendment exception to Title VII in artistic works where race is an integral part of the story or is necessary for artistic purpose).
A BFOQ will serve as a defense to a claim of discrimination unless the court finds there is a less restrictive alternative. As an example, if a business hires men because they are taller and can reach items on high shelves, there may be an alternative of using ladders or stepstools. If, however, the alternative would be unduly costly or burdensome (like renovating entire portions of a building), the BFOQ may be upheld. We will be looking more at the issue of less restrictive alternatives when we discuss the Americans With Disabilities Act (ADA).
Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.
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