BFOQ or Not?

Bona Fide Occupational Qualifications (BFOQs) are one potential defense for adverse impact in selection. When using a BFOQ defense an employer argues that only applicants of a particular gender (or age range) are qualified to perform the job. But it is often unclear when a BFOQ defense actually applies. Consider each of the following cases, as you answer the following questions:

1. Was Mr. Garcia the victim of sex discrimination? Were male applicants to Women’s World?

2. Is there a general principle that applies to both cases? If you came to different conclusions for the two cases, what were the important differences in the facts of each case?

3. How should customer preferences be handled when evaluating BFOQ claims?

Joseph Garcia v. Hooters

Hooters Restaurants had a competitive strategy of appealing to young affluent males through such features as happy hours, televised sporting events, sports celebrity events, and very attractive waitresses. Joseph Garcia was a waiter from Chicago who had worked at similar restaurants for over 10 years. He heard from a friend that Hooters was hiring, but when he showed up to apply for a job he was told that they were not hiring. He learned a few weeks later that an attractive female had been hired at the same restaurant. He filed a timely claim with the EEOC.

EEOC v. Sedita dba Women’s World, 755 F. Supp. 808 (N.D. III, 1991))

Women’s World, a health club catering exclusively to women, was sued for refusing to hire men as managers, assistant managers, and instructors. The club argued that gender was a BFOQ for these positions, because its very existence was based on members consciously choosing to join an all-female health club rather than a competitor with otherwise similar facilities. The club argued that the female patrons had a right to privacy, and claimed that some of its members had, in the past, been disturbed by the presence of men in the club. In fact, the members of the club presented the court with a petition stating that it would be an invasion of their privacy to have men working as instructors in the club. The club noted that each of the positions required substantial physical contact with members’ bodies, and that they were exposed to nudity in the locker room, showers and bathrooms during orientation sessions for new and prospective customers. Male applicants argued that they could do the job just as well as women, and that the job could reasonably be restructured to reduce privacy concerns.