Describe job clearly before defining gender as a BFOQ (Bona Fide Occupational Qualification)
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Describe job clearly before defining gender as a BFOQ (Bona Fide Occupational Qualification)

In BFOQ jobs, make sure you get your job descriptions right

You may know what a BFOQ is. It stands for bona fide occupational qualification, and it refers to a job where you can legally consider gender when hiring.

If you have BFOQ jobs – a classic example is public toilet attendant, but there are others – it’s a good idea to arm yourself with a job description that makes clear why the job is sex-specific and requires a BFOQ designation.

Case in point: A school district in South Dakota that came to grief when trying to fill a job that it felt had a BFOQ. The district advertised a full-time physical education position, and a part-time gym teacher, a woman, applied for it. When a less qualified man was hired, she filed a sex discrimination lawsuit.

The district said because the PE teacher had to supervise an all-male locker room, being a man was a BFOQ. Not so, the woman said. She argued that the district didn’t make clear ahead of time that a man was required.

Why sex-specific?
The court refused to throw out the woman’s suit, agreeing that from the job description, it wasn’t clear that same-sex locker room supervision was required for the position. And the advertisement didn’t say the district was looking for a man.

So when dealing with a BFOQ job, it’s to your advantage to explain clearly in the job description what about the job makes it impossible for members of one gender to fill. And when advertising, specify that you’re looking for an applicant of a particular gender, and why.

Cite: McCardle v. Mitchell School District, No. 03-4092, D.S.D., 5/11/05.

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