California Civil Jury Instructions (CACI) (2017)

2501. Affirmative Defense - Bona fide Occupational Qualification

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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.
New September 2003
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
• Bona fide Occupational Qualification. Government Code section 12940(a)(1).
• Bona fide Occupational Qualification. Cal. Code Regs., tit. 2, § 7286.7(a).
• Bona fide Occupational Qualification Under Federal Law. 42 U.S.C. § 2000e-
• 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.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 925
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 9:2380, 9:2382, 9:2400, 9:2430
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 2.91–2.94
2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal
Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.54[4], 115.101 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:84 (Thomson Reuters)