The Commission considers that the exception provided for in Article 703(e)(1) for a bona fide professional qualification based on religion, as well as the exception relating to national origin and sex, is extremely narrow. In contrast, Articles 702 and 703(e)(2) of Title VII provide for broader exceptions for religious bodies, associations, educational institutions and corporations with respect to the recruitment of persons of a particular religion. (See §604, theories of discrimination, and §605, jurisdiction.) It is probably because of the exceptions provided for in §§ 702 and 703 (e) (2) that so far there have been no legal proceedings or Commission decisions concerning the BFOQ exception on the basis of religion. “Capacity” means those in which an employer who claims the application of the BFOQ exception claims that members of the excluded sex are physically, mentally or emotionally incapable of performing a work function as part of the normal operation of the employer`s business. For example, a grocery store owner refuses to hire women at the delivery man`s job on the grounds that some of the food parcels to be delivered weigh more than 50 pounds and women cannot lift 50-pound items. (8) The defendant was denied a promotion to a supervisory position in the respondent`s business, at least in part, because of her gender. The respondent stated that he did not believe that a woman was physically qualified to do the job, as this required lifting very heavy goods. The prosecution testified in its indictment that there were camp boys doing the heavy lifting and that equivalent positions in other stores were occupied by women. The respondent did not refute this assertion, nor did it demonstrate that it was not possible to consider women for the position on the basis of their individual qualifications and abilities. Outfit: No BFOQ; “We further note that if (1) a job only occasionally involves lifting beyond the capacity of most women, and (2) there is a reasonable alternative to the requirement that the person holding the work be able to perform the lifting (for example, when the stockboys perform the heavy lifting), then it violates Title VII, when an employer refuses to accept the alternative that does not exclude a disproportionate percentage of women from work. they are also qualified to provide services. Commission Decision No 71-2604 (unpublished), based on Commission Decision No 71-1332, Decisions of the CHC EEOC (1973) ¶6212.
(4) An airline`s policy of rejecting male applicants and hiring only women as flight attendants constituted prohibited discrimination on the basis of sex. The exception to the BFOQ provided for in Title VII of the prohibition of discrimination on the basis of sex applies only if the nature of the commercial activity would be compromised, if no recruitment of such a person would be jeopardized; exclusively sexual. To justify discrimination on the basis of sex, the employer must demonstrate that the skills of the sex employed are necessary for the company and not merely tangential. Here, women`s superior skills in some non-mechanical aspects of work – such as calming anxious passengers, polite personal service and making the flight as enjoyable as possible – did not make the female sex a BFOQ for the position of flight attendant, as these skills are simply tangential and are not necessary for the airline`s main function of transporting passengers safely from one point to one point. other. Moreover, customers` preferences for those skills cannot justify discrimination on grounds of sex. Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 3 EPD ¶8166 (5th Cir. 1971), certificate denied, 404 U.S.
950, 4 EPD ¶7560 (1971). On the basis of the facts of the preceding example, that finding is that the nature of the employer`s undertaking is not compromised by the employment of French trainers other than those born in the country. The ability to speak and teach the French language does not depend on whether a person is of French national origin. Although the narrowness of the sex-based BFOQ exception was established early on, the application of this general principle has been examined in some recent court decisions regarding a potential conflict between the gender of an employee in a “contact position” and the privacy interests of clients of an employer or employer. (See §625.9(d) below.) As noted in paragraph 625.4(b), one of the elements that definitively determines the validity of an employer`s right to the BFOQ by sex is the analysis of whether the “essence” of the employer`s business would be compromised if all members of one sex were not excluded from consideration for the position in question. In limited circumstances where an employer`s sexual BFOQ claim is based, in whole or in part, on an alleged violation of the client`s or client`s privacy, consideration of these privacy interests is a factor in this analysis. Such an examination is limited to determining whether it would be possible to protect legitimate data protection interests without completely excluding members of one sex from employment, for example by restructuring professional responsibilities.