Monday, January 21, 2013

EEO Laws - Title VII (Part 2)


Today I would like to continue our discussion of Title VII.  On both a legal and on an ethical level for Managers and Human Resources Professionals, it is important to treat individuals in “Protected Groups” in a non-discriminatory way.  As always, please feel free to provide your own thoughts and ideas in the comments section below.

EEO Laws - Title VII 
(Part 2)

Bona Fide Occupational Qualifications (BFOQ)

There are occasions in hiring in which a company may be able to discriminate legally.  This discrimination is known as a Bona Fide Occupational Qualification.  The BFOQs relate to essential functions required to carry out a job.  There may be some jobs that may require personal features which are necessary to properly perform a job.  For example, astronauts in NASA currently are required to be between 62 and 75 inches in height.  This is because NASA’s equipment is designed to fit that specific range of heights safely.  Someone that is 79 inches tall might not be able to get their suit on for a spacewalk.  Therefore, it this situation, it would be okay to discriminate in hiring against those taller or shorter than the acceptable height range.

Per the Cornell University Law website:
Title VII permits you to discriminate on the basis of "religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." This narrow exception has also been extended to discrimination based on age through the Age Discrimination in Employment Act (ADEA). This exception does not apply to discrimination based on race.

If you think that a position may require a BFOQ as part of the job description, it is obviously essential that you discuss it with a lawyer.  You would not want to be drawn into a lengthy court proceeding.  Consider that since 1997, Hooters restaurant has paid out millions of dollars in out of court settlements because of their position that female sexuality is a BFOQ.  Be careful to ensure that your BFOQ is actually essential to being able to complete a job.

Disparate Impact

One other special item to consider from Title VII is the area of Disparate Impact.  In the process of forming company policies and in creating job postings, be mindful that discrimination is not unintentionally supported.  Under Griggs v Duke Power Co., the Supreme Court ruled that a plaintiff only needs to prove adverse impact and not adverse intent.  A policy that appears to be neutral, but which results in a protected group being discriminated against, can still be held liable.   In the example of the Griggs case, the requirement of a High School Diploma and high IQ test scores were decided to be unfair, as these requirements were not directly affecting the ability of a person to complete a job.

Thank you for staying with me through this post.  I hope that you all have a happy and productive day.

And remember all of you Human Resources professionals:  Be Human... Be a Resource...  Be a Resource for Humans.


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Disclaimer: The views expressed in this post are by the author Trevor Stasik, and do not necessarily reflect the views of any employer or any other organization. Please note, this information is based on my understanding and is only to be used for informational and educational purposes. Do not take what I am writing as advice. Seek your own legal counsel and/or see a tax accountant before making business or personal decisions. The author of this post makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The owner will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information.

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