Posted: August 26th, 2022

Bona Fide Occupational Qualification

Bona Fide Occupational Qualification
Title VII of the 1964 Civil Rights Act (CRA) prohibited discrimination in opposition to staff on the premise of race, coloration, faith, intercourse, or nationwide origin (the acronym SNORRC, recommended by a former scholar on this course, might enable you to keep in mind these). Extra anti-discrimination legal guidelines have been handed over the previous 40 years or so, however neither these legal guidelines nor the 1964 CRA have supplied a definition of unlawful discrimination. By means of court docket selections, nonetheless, two main definitions of discrimination have emerged: (1) disparate therapy; and (2) disparate impression.

The disparate therapy definition entails intent, & is subsequently comparatively noncontroversial. The disparate impression definition, nonetheless, doesn’t require intent, & subsequently stays controversial. As well as, courts have additionally allowed for exceptions (BFOQ) by which organizations are legally permitted to interact in disparate therapy. On this discussion board, you might be requested to handle one of many following questions.

1. The BFOQ (bona fide occupational qualification) exception (see the posting “BFOQ points”) permits organizations to legally discriminate on the premise of a protected attribute or class. 4 postings (“Fired for being fats,” “Abercrombie & Fitch case,” “BFOQ restaurant circumstances,” & “Girls solely?: The circumstances of Chariot for Girls/Safr & See Jane Go”) straight or not directly increase the difficulty of how broadly outlined the BFOQ must be. Talk about the important thing challenge raised by the final posting (women-only ride-sharing start-up corporations), particularly, whether or not intercourse (being feminine) constitutes a BFOQ for the job of driver in these corporations. Word that the legality of those corporations’ hiring practices is presently unclear.

Current as persuasive a case as you possibly can for each the professional (“Sure, intercourse does represent a BFOQ for the job.”) & the con (“No, intercourse doesn’t represent a BFOQ for the job.”) aspect of the difficulty, after which draw a conclusion about which aspect has the stronger case. In your arguments, just be sure you depend on court docket selections & their rationales in prior BFOQ circumstances. You might be inspired to solicit opinions from kinfolk, buddies, and acquaintances on whether or not these corporations’ hiring practices are cheap and must be authorized, & examine these opinions with the outcomes of your authorized reasoning. You might be additionally inspired to answer arguments of different class members, particularly these whose conclusions differ from yours.

If you’re enthusiastic about an in depth authorized evaluation of the problems concerned on this case, see the next legislation evaluation articles:

Safr-BFOQ-StanfordLaw-Evaluation-2017.pdf

ChariotForWomen-Safr-SeeJaneGo-BFOQ-LegalAnalysis-Portlandia Ridesharing and Intercourse Discrimination.pdf

2. The EEOC has been lively lately in pursuing disparate impression discrimination circumstances, as illustrated by the Pepsi Drinks case described within the “Definitions of discrimination” slide set & the 2018 case by which Goal settled for $Three.74 million with out admitting any wrongdoing; see:
https://www.reuters.com/article/us-target-lawsuit/target-settles-claims-it-screened-blacks-hispanics-out-of-jobs-idUSKCN1HC2AN
The idea of disparate impression discrimination has been attacked on various grounds. Probably the most primary of those has been that virtually any job qualification or hiring criterion will produce a disproportionate impact on one or one other protected class (as captured by the saying “You present me a job qualification, & I’ll present you disparate impression.”) The four/5 rule specifically has been criticized for setting a really low & unreasonable threshold for charging discrimination. As well as, because the Sowell piece suggests, the disparate impression normal requires the employer to tackle the burden of proving itself “harmless” (by exhibiting that the hiring criterion or apply in query is job-related or mandatory for the enterprise). Talk about the professional & con arguments for utilizing the disparate impression normal for discrimination. Discuss with the circumstances & articles posted, in addition to related experiences you’ve had in your individual group. Lastly, what are the societal implications of plaintiffs & the EEOC relying closely on the disparate impression definition of discrimination?

Bona Fide Occupational Qualification
Title VII of the 1964 Civil Rights Act was enacted in the US to guard staff from bias on the grounds of race, faith, intercourse, coloration, and nationwide origin. The Bona Fide Occupational (BFOQ) rule was later propagated in Title VII to permit employers to contemplate the premise of discrimination when hiring new recruits. This was an distinctive protection solely in conditions the place the particular had been moderately essential to the success of that exact enterprise and definable group of individuals couldn’t carry out the work successfully (Napikoski, 2019). The circumstances of See Jane Go and SafeHer women-only ridesharing apps introduced controversy as as to if intercourse constituted a BFOQ rule for the driving force’s jobs within the corporations or not.
The choice of the 2 corporations to make use of intercourse as a BFOQ for the job was acceptable due to the next causes. First, the SafeHer and See Jane Go had the intention of offering bodily and psychological security to their prospects. Many ladies, significantly those that have been by way of sexual assault, have a concern of associating with males and see the male drivers as a menace. Offering transportation which completely hires feminine drivers would make such ladies really feel protected and at much less danger of being harassed. Second, these specific corporations are centered on serving feminine clientele (Herbert, 2016). Due to this fact, hiring male drivers wouldn’t be viable for these particular corporations since their companies are tailor-made for females. Utilizing intercourse as a BFOQ exception contributed to the essence of the enterprise, which was to offer protected journey.
Alternatively, intercourse doesn’t kind a BFOQ for the driving force’s job within the SafeHer and See Jane Go corporations. First, the businesses’ objective is to offer protected transportation to ladies identical to different ridesharing apps and this, in response to the Supreme Court docket, is the essence of the enterprise (Grey, 2017). Hiring male drivers doesn’t undermine the target of the businesses since there isn’t a proof that feminine drivers are extra superior or competent within the work. Second, not all males are a menace to ladies, and this doesn’t justify the declare of security. Hiring feminine drivers solely is an illustration of discrimination of the male gender and inequality in employment. Different security measures might be employed to stop harassment throughout a journey with a male driver. The businesses mustn’t base their selections on a stereotyped characterization of males.
Utilizing intercourse as a BFOQ doesn’t represent to a driver’s job within the SafeHer and See Jane Go circumstances. It is a clear depiction of discrimination in employment for the reason that essence of the enterprise of the particular corporations just isn’t affected when male drivers are employed (Weiss, 2019). Secure transportation of feminine prospects might be achieved by establishing extra security strategies in autos reminiscent of cameras and trackers. The explanations introduced by the businesses to make use of intercourse as a BFOQ will not be sufficient to permit them to proceed with the hiring apply. SafeHer and See Jane Go must show that male drivers are incapable of driving ladies to their selections. If they’ve the abilities, skilled expertise, data, and good morals, then they shouldn’t be denied employment alternatives.
To conclude, Title VII of the Civil Rights Act and different legal guidelines which have been enacted thereafter have been useful to staff. Defending individuals of their workplaces makes them snug and extra productive. The Bona Fide Occupational exception must be totally evaluated since some companies can use them to discriminate different individuals. They need to solely be allowed in circumstances the place that exact enterprise is affected and that no different particular person can have the ability to carry out the obligations.

References
Grey, A. (2017). SafeHer, however not for Him: Title VII Discrimination in Ridesharing. Stanford Regulation & Coverage Assessment On-line, 28(13), 13-20.
Herbert, A. (2016). Portlandia, Ridesharing, and Intercourse Discrimination. Michigan Regulation Assessment On-line, 115, 18-25.
Napikoski, L. (2019, March 30). What Is a Bona Fide Occupational Qualification? Retrieved from https://www.thoughtco.com/bona-fide-occupational-qualification-3530827
Weiss, J. T. (2019). Civil Rights Act of 1964, Title VII. The Encyclopedia of Girls and Crime, 1-Three. doi:10.1002/9781118929803.ewac0061

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