California Civil Jury Instructions (CACI)
2501. Affirmative Defense - Bona fide Occupational Qualification
[Name of defendant] claims that [his/her/its] decision to [discharge/ [other adverse employment action]] [name of plaintiff] was lawful because [he/she/it] was entitled to consider [protected status—for example, race, gender, or age] as a job requirement. To succeed, [name of defendant] must prove all of the following:
1. That the job requirement was reasonably necessary for the operation of [name of defendant]'s business;
2. That [name of defendant] had a reasonable basis for believing that substantially all [members of protected group] are unable to safely and efficiently perform that job;
3. That it was impossible or highly impractical to consider whether each [applicant/employee] was able to safely and efficiently perform the job; and
4. That it was impossible or highly impractical for [name of defendant] to rearrange job responsibilities to avoid using [protected status] as a job requirement.
Directions for Use
An employer may assert the bona fide occupational qualification (BFOQ) defense where the employer has a practice that on its face excludes an entire group of individuals because of their protected status.
Sources and Authority
Government Code section 12940 provides that certain discriminatory employment practices are unlawful "unless based upon a bona fide occupational qualification."
The Fair Employment and Housing Commission's regulations provide: "Where an employer . . . has a practice which on its face excludes an entire group of individuals on a basis enumerated in the [FEHA], . . . the employer . . . must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the usiness operation would otherwise be undermined." (Cal. Code Regs., tit. 2, § 7286.7(a).)
Federal title VII provides that "a bona fide occupational qualification [is] reasonably necessary to the normal operation of [the] particular business or enterprise." (42 U.S.C. § 2000e-2(e)(1).)
The BFOQ defense is a narrow exception to the general prohibition on discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1986) 187 Cal.App.3d 1, 19 [231 Cal.Rptr. 769]; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc. (1991) 499 U.S. 187, 201 [111 S.Ct. 1196, 113 L.Ed.2d 158].)
" '[I]n order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.' " (Bohemian Club, supra, 187 Cal.App.3d at p. 19, quoting Weeks v. Southern Bell Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, 235.)
"First, the employer must demonstrate that the occupational qualification is 'reasonably necessary to the normal operation of [the] particular business.' Secondly, the employer must show that the categorical exclusion based on [the] protected class characteristic is justified, i.e., that 'all or substantially all' of the persons with the subject class characteristic fail to satisfy the occupational qualification." (Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158], quoting Weeks, supra, 408 F.2d at p. 235.)
"Even if an employer can demonstrate that certain jobs require members of one sex, the employer must also 'bear the burden of proving that because of the nature of the operation of the business they could not rearrange job responsibilities . . .' in order to reduce the BFOQ necessity." (Johnson Controls, Inc., supra, 218 Cal.App.3d at p. 541; see Hardin v. Stynchcomb (11th Cir. 1982) 691 F.2d 1364, 1370- 1371.)
"Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is 'impossible or highly impractical' to deal with the older employees on an individualized basis." (Western Airlines, Inc. v. Criswell (1985) 472 U.S. 400, 414-415 [105 S.Ct. 2743, 86 L.Ed.2d 321], internal citation and footnote omitted.)
"The Fair Employment and Housing Commission has interpreted the BFOQ defense in a manner incorporating all of the federal requirements necessary for its establishment. . . . [¶] The standards of the Commission are . . . in harmony with federal law regarding the availability of a BFOQ defense." (Bohemian Club, supra, 187 Cal.App.3d at p. 19.)
"By modifying 'qualification' with 'occupational,' Congress narrowed the term to qualifications that affect an employee's ability to do the job." (International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, supra, 499 U.S. at p. 201.)
Element 1 is based on language used in section 703(e)(1) of title VII (42 U.S.C. § 2000e-2(e)(1)) and the Age Discrimination in Employment Act (29 U.S.C. § 623(f)(1)). In contrast, California Code of Regulations, title 2, section 7286.7(a) provides as an element of the BFOQ defense that "the essence of the business operation would otherwise be undermined." The language derived from federal statutes has been cited by California courts and may be easier for a lay juror to understand.
8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 760, pp. 260-261; id. (2002 supp.) at § 760A, pp. 141-144
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Sexual Harassment, §§ 3.27-3.28, pp. 133-135; Discrimination Claims, § 2.108, p. 83
2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal Employment Opportunity Laws, §§ 41.94, 41.108 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.54, 115.101 (Matthew Bender)
Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2:80, pp. 100-101 (rel. 12/93)
(New September 2003)