Case Study: Applications of the Bona Fide Occupational Qualification Defense to the Age Discrimination of Employment Act of 1967

Explain what a BFOQ defense is and when it might be appropriate in an age-discrimination lawsuit under ADEA.

The Bona Fide Occupational Qualification (BFOQ) defense is a defense against charges of employment discrimination that appeals to cases where such discrimination is legally permissible. Yet, in order to understand how BFOQ applies to discrimination claims, it is important to first assess the Age Discrimination in Employment Act and the specific restrictions it places upon forms of employment discrimination. According to Thomson (2006), the Age Discrimination in Employment Act is an expansion to Title VII of the Civil Rights Act of 1964, which adds age to the prohibitions against discrimination based on race, color, religion, sex, or national origin (p. 20). As section 623 of the Act stated, it is unlawful for employers to refuse to hire or to fire an individual because of his or her age (U.S. Equal Employment Opportunity Commission, n.d.). This provision provides specific protections to employees over the age of 40 by providing them with legal protections against age discrimination.

However, Title VII of the Civil Rights Act of 1964 provides exemptions that allow employees to discriminate in select cases. As Section e of the Act establishes that employers can hire employees “on the basis of his 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…” (Thomson, 2006, p. 20). Further, employers can specify age limits on job advertisements when the limitation represents a bona fide occupational qualification (Phan, 1999, p. 11). The BFOQ defense is appropriate under an Age Discrimination in Employment Act lawsuit because it enables employers to present the case that the age of an employee prevented him or her from performing a necessary task related to the job.

What did Gloria Allred mean when she said that the employer was trying to invoke the BFOQ defense – how would the employer’s comments relate to such a defense?

As Gloria Allred noted, the hotel owners attempted to invoke the BFOQ defense when they made a statement on the important role that entertaining served in their business. As the case highlighted, the hotel’s spokesperson stated that the hotel presented a show to guests that their employees were part of. The legally relevant component of this statement is the assertion that the entertainment performances were a daily task for the employees. By maintaining that performing in the dance routines was central to the job of the cocktail servers, the spokesperson modified their job responsibilities so that they would fall under the BFOQ exemptions. Instead of holding the main responsibility of serving cocktails to resort guests, the spokesperson’s statements established that cocktail waitresses held the main responsibility of performing for guests. Thus, the suitability of the cocktail waitresses to act could be taken into account by hotel management when determining whether the senior waitresses possessed the bona fide qualifications that were necessary to perform the job.

Will the fired cocktail servers be able to convince a judge and jury that the defendant [the hotel-casino] committed age discrimination in violation of the ADEA?

In this case, the employers will be able to convince the judge and jury that the defendant committed age discrimination in violation of the Age Discrimination in Employment Act. As the provisions of Act states, it is unlawful for employers to dismiss employees on the basis of age (U.S. Equal Employment Opportunity Commission, n.d.). The defense might argue that the ability of the cocktail waitresses to perform was an issue rather than their age, asserting that they dismissed the servers because they did not fit the “Roaring Twenties” theme. From this standpoint, they could argue that it was the inability to fit the theme rather than the age of the waitresses that resulted in their termination. Yet, the action of the hotel managers contradicts this defense. First, the management fired fifteen of the oldest cocktail servers after asking them to model flapper costumes. Second, the management replaced the older workers with workers who were younger. This shows a clear pattern of firing and hiring based solely on age. Because the pattern is clear, the cocktail servers will be able to satisfactorily demonstrate to the court that age was a critical factor in their termination from their positions.

Will the defendant be able to convince the judge and jury that age is a BFOQ for the cocktail servers in this case?

In this case, the defendants will not be able to convince the judge and jury that they have a legitimate BFOQ for the cocktail servers. As Raper (1989) noted, the BFOQ exception is an affirmative defense, which means employers have the burden of proving that BFOQ is appropriate to the case (p. 558). Further, the ambiguity of the BFOQ exception in Title VII of the Civil Rights Act makes it difficult for employers and legal scholars to determine what exactly constitutes as a BFOQ exception. As a trend, courts have often interpreted BFOQ claims narrowly and on a case-by-case basis (Raper, 1989, p. 557-558; DiSanti, 1987, p. 772). Thus, the defendants face a significant disadvantage in establishing a case that will convince the judge and jury of BFOQ.

Further disadvantaging the defense, case law on BFOQ pertains to work scenarios that differ greatly from the scenario presented in this case. For example, successful utilization of the BFOQ defense involved companies that established safety reasons as a reason for imposing age restrictions. In Hodgson v Greyhound Lines Inc., the bus line successfully argued that it was necessary to refrain from hiring drivers over the age of 35 in order to ensure that their drivers could perform safely (Schachter, 2013, p. 380). Additionally, in Coupe v Federal Express Corp., the sixth circuit appeals court accepted the BFOQ as a justification for the Federal Aviation Administration’s policy of setting a mandatory retirement age for commercial pilots (Schachter, 2013, p. 380). As case law demonstrates, BFOQ arguments have the highest chance for success when they concern matters of occupational safety.

Yet, administrative bodies have expanded the applications of BFOQ. For example, the Oregon Civil Rights Division assessed that discrimination in the entertainment industry in order to ensure that actors and models are appropriately cast is permissible under the BFOQ exception (Thomson, 2006, p. 20). This exception likely informed the hotel spokesperson’s decision to portray the cocktail servers as entertainers. However, as the representative of the fired servers noted, the entertainment component of the job was minuscule and serving drinks to customers was the primary job of the servers. Thus, it is unlikely that the defense will be able to adequately convince the court that the servers were unable to perform tasks related to serving drinks to customers based upon their age.

Who do you think will win the case? Explain briefly based upon your analysis of, and answers to, the four previous questions.

It is likely that the plaintiffs will win this case. First, because the hotel blatantly discriminated against the employees on the basis of age by firing the oldest workers and replacing them with younger workers, the waitresses will be able to establish that a violation of the Age Discrimination in Employment Act has occurred. Further, because the courts have a tradition of narrowly interpreting BFOQ exclusion and because BFOQ is an affirmative defense, the employers are unlikely to convince the judge or jury that the age of the cocktail servers prevented them from performing a function that was necessary to the task of serving drinks. As a result, the BFOQ exclusion is not applicable to the defense.

References

DiSante, M. D. (1987). Age discrimination in employment act – judicial interpretation of the bona fide occupational qualification exception. The Journal of Air Law and Commerce, 52(3), 773-795.

Phan, B., & Kleiner, B. H. (1999). The basics of employment discrimination. Equal Opportunities International, 18(8), 10-15.

Raper, C. (1989). Age discrimination in the airline industry: Is age a bona fide occupational qualification for the position of pilot? The Journal of Air Law and Commerce, 55(2), 543-579.

Schachter, H. L. (2013). Constructing age through bona fide occupational qualifications: De jure’s discrimination’s last stand? Public Administration Quarterly, 37(3), 374-393.

Thomson, N. F. (2006). Is this a bona fide occupational qualification?. Journal of the International Academy for Case Studies, 12(3), 19-23.

U.S. Equal Employment Opportunity Commission. (n.d.). The age discrimination in employment act of 1967. Retrieved from http://www.eeoc.gov/laws/statutes/adea.cfm