Employers sometimes tell an applicant or an existing employee who seeks a new position within the company, that they lack a required qualification for the position. When the excuse given by the employer is that the position requires the employee to be a certain ethnicity, sex, or be under a certain age, etc., it is rarely the case and is frequently illegal. The law does allow some rare exceptions, known as “Bona Fide Occupational Qualifications” (BFOQ) to discrimination law that permit a business to treat an employee differently because they are a member of a specific class, such as race, sex, age, disability, etc., that is protected under discrimination statutes. However, the BFOQ exception is an extremely narrow defense, available only when the employer can prove that the protected trait is essential to the job's core duties and reasonably necessary to the business's operation. Courts in New Jersey have consistently required employers to meet a high burden of proof before invoking this exception.
Examples of Invalid and Illegal Bona Fide Occupational Qualifications
Customer Preference: Refusing to hire older workers because clients “prefer” younger employees.
Stereotypes: Assuming women cannot handle physically demanding jobs without individualized assessment.
Assumptions Based on Cultural Prejudice: Such as persons of a certain race or a certain age lack the inherent ability and life experience to perform tasks as well as an employee of another race or age.
Historical Usage, Tradition or Local Custom: “This is the way we have always done things.”
Convenience: Using a protected trait as a shortcut for evaluating ability rather than assessing actual qualifications.
Don’t sit on your rights. Call today for a free consultation. If you think your employer has begun discriminating against you, you should contact this office immediately for a free consultation. I have represented public and private employees who were discriminated against and was successful in recovering financial compensation for their emotional pain and suffering and moneys for past lost wages and projected future lost wages. I accept cases from all over the state and have locations in northern, central and southern NJ to meet with clients. Call today for a free consultation.
In New Jersey, a legal reason not to hire someone based on a protected characteristic exists only if the employer can establish a true BFOQ under N.J.S.A. 10:5-12 and courts will scrutinize such claims closely, NJ has one of the most comprehensive anti-discrimination statutes in the nation under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq. The NJLAD broadly prohibits employers from refusing to hire or otherwise discriminating against individuals based on protected characteristics such aa sex, age, etc., and more. However, the law recognizes a narrow exception: when a protected characteristic is a Bona Fide Occupational Qualification (BFOQ).There are narrow exceptions which may include one’s sex, when it is reasonably necessary to the normal operation of the particular business or enterprise (such as casting one as an actor or actress in a movie or play), or religion in some circumstances applying to religious institutions, that could be considered a Bona Fide Occupational Qualification in some types of employment.
THE BASIC STATUTORY FRAMEWORK - WHAT’S PROHIBITED
The relevant statutory provision is N.J.S.A. 10:5-12(a), which states: “Unlawful employment practices, discrimination, It shall be an unlawful employment practice, or ... an unlawful discrimination:
a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability, see Disability Law, or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer, to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” See NJ Employment Attorney, Older Female Employees Suffer Discrimination, Compounded Effect of Age and Sex Discrimination.
THERE ARE EXCEPTIONS
N.J.S.A. 10:5-12(a) specifically names the traits of one’s “sex” and “religion” as two of the otherwise protected classes, which in some narrow circumstances may be a bona fide occupational qualification (BFOQ ) and a legally allowable exception:
“However, it shall not be an unlawful employment practice to refuse to accept for employment an applicant who has received a notice of induction or orders to report for active duty in the armed forces; provided further that nothing herein contained shall be construed to bar an employer from refusing to accept for employment any person on the basis of sex in those certain circumstances where sex is a bona fide occupational qualification, reasonably necessary to the normal operation of the particular business or enterprise”; and
“provided further that it shall not be an unlawful employment practice for a club exclusively social or fraternal to use club membership as a uniform qualification for employment, or for a religious association or organization to utilize religious affiliation as a uniform qualification in the employment of clergy, religious teachers or other employees engaged in the religious activities of the association or organization, or in following the tenets of its religion in establishing and utilizing criteria for employment of an employee.” See US Supreme Court Decides Religious Exemptions for Certain Teachers.
THE CODE’S PROHIBITED USE OF BFOQ:
The N.J. Admin. Code § 13:11-1.4 provides further insight on the Bona Fide occupational qualification exception and its application. Under the code, the "bona fide occupational qualification" exception:
It Shall include only those vocational qualifications that are reasonably necessary to the normal operation of the particular business, enterprise, or apprentice or other training program.
The exception shall be interpreted so that individuals will be considered for employment on the basis of their individual capacities and not on the basis of any characteristics generally attributable to their group.
The employer, employment agency, or union has the burden of establishing that race, creed, color, national origin, ancestry, nationality, age, marital status, civil union status, affectional or sexual orientation, gender identity or expression, domestic partnership status, disability, liability for service in the Armed Forces of the United States, or sex is a bona fide occupational qualification. See NJ Employment Attorney, Older Chief Executives and Senior Executives Fired Due to Age.
The application of the BFOQ exception is NOT warranted where based on, for example:
1.) Assumptions of the comparative general employment characteristics of persons of a particular race, creed, color, national origin, ancestry, nationality, age, sex, affectional or sexual orientation, gender identity or expression, civil union status, domestic partnership status, disability, liability for service in the Armed Forces of the United States, or marital status, such as their turnover rate;
2.) Stereotyped characteristics of the aforementioned classes, such as their mechanical ability or aggressiveness; New Jersey Race Discrimination Lawyer.
3.) Customer, client, co-worker or employer preference, or historical usage, tradition, or custom; see New Jersey Age Discrimination Lawyer, or,
4.) The necessity of the employer having to provide separate facilities of a personal nature, such as rest rooms or dressing rooms.
WHERE THE CHARACTERISTIC OF ONE’S SEX MAY BE WARRANTED AS A BONA FIDE OCCUPATIONAL QUALIFICATION
In regard to sex, the application of the BFOQ exception may be warranted in some narrow circumstances such as:
Where it is necessary for authenticity or genuineness, such as for an actor or actress, or
Where the job in question necessarily involves intimate personal contact with persons of the opposite sex, and the employer demonstrates that such contact is an essential function of the job and a central purpose of the employers enterprise, that clients, patients, or others served would not consent to service by members of the opposite sex, that the legitimate privacy interests of clients, patients, or others served by the employee outweigh the public interest in equal employment opportunity, and that no reasonable alternatives to a gender-based BFOQ are feasible.
As example of where, “intimate personal contact with persons of the opposite sex where no reasonable alternatives to a gender-based BFOQ is feasible,” was decided by the Appellate Division in re Juvenile Detention Officer Union County, 364 N.J. Super. 608 (2003) In this case, the court noted that both state and federal proscriptions against sex-based discrimination recognize a limited bona fide occupational qualification exception. In the context of youth detention facilities, courts have consistently recognized a greater privacy interest for juvenile detainees. Although the issue has never been before been decided in NJ, other courts have recognized a BFOQ exception to protect the juvenile's enhanced privacy interests.
Again, mere customer preferences as to an employee’s sex or other protected traits such as age or race; client preferences, co-worker or employer preferences; historical usage; tradition or custom are not a valid bona fide occupational qualification exception.
WHAT YOU CAN DO
I have represented public and private employees who were illegally discriminated against and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages. If you think your employer is illegally discriminating against you, you should contact this office immediately for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit
In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of handing in a resignation letter, or think you will be fired (or have already been terminated), you should contact this office immediately for a free consultation to discuss your options.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.