Bona Fide Occupational Qualification (BFOQ): What California Business Owners Must Know
Introduction
California’s Fair Employment and Housing Act (FEHA) generally prohibits employers from discriminating against employees or job applicants based on protected characteristics like sex, age, race, disability, religion, or other status (Cal. Gov’t Code § 12940(a)). However, in rare circumstances, employers are allowed a defense—the bona fide occupational qualification (BFOQ)—if the protected status is reasonably necessary for the safe and efficient operation of the business.
What Is a Bona Fide Occupational Qualification?
A BFOQ is a narrow exception that permits an employer to make employment decisions based on protected characteristics, but only when those characteristics are truly essential to the job (Cal. Gov’t Code § 12940(a)(1); Cal. Code Regs., tit. 2, § 11010(a)). For example, hiring only female attendants for a women’s restroom or imposing age limits for certain physically demanding jobs may under rare circumstances be lawful.
What Must the Employer Prove?
To successfully defend a decision based on a BFOQ, California employers must prove all of the following:
The job requirement based on protected status is reasonably necessary for the operation of the business.
The employer reasonably believes that all or substantially all members of the protected group are unable to safely and efficiently perform the job (Bohemian Club v. Fair Employment & Housing Com., 187 Cal.App.3d 1, 19 (Cal. Ct. App. 1986); Johnson Controls, Inc. v. Fair Employment & Housing Com., 218 Cal.App.3d 517, 540 (Cal. Ct. App. 1990)).
It is impossible or highly impractical to assess each applicant or employee individually for their ability to do the job (Western Airlines, Inc. v. Criswell, 472 U.S. 400, 414-15 (1985)).
It is impossible or highly impractical to rearrange job responsibilities to avoid using protected status as a requirement (Johnson Controls, Inc., 218 Cal.App.3d at 541).
Federal and State BFOQ Standards
California’s FEHA tracks federal law under Title VII, which also recognizes the BFOQ defense but stresses that it must be genuinely related to job performance and safety (42 U.S.C. § 2000e-2(e)(1); International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991)). Both state and federal courts have repeatedly held that the BFOQ defense is interpreted narrowly and only applies in exceptional circumstances.
Practical Guidance for Employers
Review all job requirements and qualifications: Don’t use protected status as a basis for employment decisions unless truly necessary for job safety and business operations.
Document objective, factual reasons: You must have a solid, factual basis supporting the job-related necessity and your inability to reasonably accommodate individuals without excluding an entire group.
Consider alternatives: Rearranging job duties or employing individualized assessments should be attempted before relying on the BFOQ defense.
Consult legal counsel (e.g., myself): BFOQ claims are closely scrutinized and usually heavily litigated; legal advice is critical before asserting this defense.
Bottom Line
The BFOQ is an extremely narrow exception to California’s broad anti-discrimination protections. Unless a protected status is truly essential for a job and no reasonable alternative exists, excluding or discharging an employee on those grounds invites serious legal risk. Most employers should rely on fair and individualized assessments—not generalizations about protected groups—to avoid discrimination claims.
Citations:
Cal. Gov’t Code §§ 12940(a)(1), 12945(a); Cal. Code Regs., tit. 2, § 11010(a); 42 U.S.C. § 2000e-2(e)(1); Bohemian Club v. Fair Employment & Housing Com., 187 Cal.App.3d 1, 19 (Cal. Ct. App. 1986); Johnson Controls, Inc. v. Fair Employment & Housing Com., 218 Cal.App.3d 517, 540–41 (Cal. Ct. App. 1990); International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991); Western Airlines, Inc. v. Criswell, 472 U.S. 400, 414–15 (1985); CACI No. 2501.
