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Bona Fide Occupational Qualification (BFOQ)

An employer can claim that the employment practice is a bona fide occupational qualification for performing the job. Title VІІ specifically permits this defense. Title VІІ provides that “it should not be an unlawful employment practice for an employer to hire an employee on the basis of religion, sex or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

However, courts usually interpret the BFOQ exception narrowly. It is usually a defense to a disparate treatment case based upon direct evidence of intentional discrimination, rather than to disparate impact cases. As a practical matter, employers use it mostly as a defense against charges of intentional discrimination based on age.

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