BFOQ, Glass Ceiling, and Employment Law Explained

Defining BFOQ and Its Applicable Characteristics

The Bona Fide Occupational Qualification (BFOQ) is a valid legal defense against allegations of employment discrimination where there is a genuine need to hire persons with certain qualifications or traits. One example is the requirement that engine drivers must not be color blind, which can be legally imposed. The general principle is that, outside of recognized exceptions, selective employment criteria may be applied to suit the nature of the work. Although the general requirements of a position may allow an employer to invoke the BFOQ, there is a body of laws that must be carefully studied before doing so (Weiss, 2004).

Human resources law recognizes a protected class of people, and civil rights laws are designed to ensure that employees are hired without having their rights violated. The Equal Employment Opportunities Commission (EEOC) and the U.S. Supreme Court have issued numerous decisions establishing rules in this area. For example, the definition of racial discrimination — with race interpreted as any ethnic minority under the Civil Rights Act of 1866 — makes clear that racial discrimination is directed against minorities. The BFOQ defense therefore cannot be used to exclude minorities by imposing racially targeted requirements. No characteristic specific to a protected class may be used as a qualifying criterion. However, an employer may lawfully specify an age requirement in appropriate circumstances (Weiss, 2004).

The example of color blindness disqualifying an engine driver, regardless of that individual's race or gender, illustrates a legally permissible exercise of the BFOQ. Broadly, there must be an essential trait or qualification directly tied to the job in question in order for the BFOQ defense to apply. Key issues to monitor include recruitment and hiring practices, sexual harassment, violations of privacy, and performance evaluations and promotions. An illustrative case involves mandatory retirement age: where police officers were required to retire by age 55, the employer was required to demonstrate a medically supported decline in fitness after that age and to apply the same physical standards to all employees regardless of age (Bernardin, 2007). These principles also apply under the Americans with Disabilities Act (ADA), under which persons with disabilities may not be discriminated against.

Purpose of the Glass Ceiling Commission

The Glass Ceiling Act, passed by Congress in 1991 as an extension of the Civil Rights Act of 1991, created a commission charged with identifying and addressing artificial barriers to career advancement. Before the act, executive positions were largely inaccessible to minorities and women. The commission's mandate was to examine the artificial barriers that prevented employees — particularly women — from advancing beyond a certain point in their careers, the level metaphorically described as a "glass ceiling." The goal was to ensure that all employees could reach executive positions and fulfill their professional potential without encountering such barriers (Karsten, 2006).

The act was intended to enable women and minorities, who face broad discrimination, to reach senior levels of organizational hierarchies without being excluded from those opportunities. It also aimed to ensure that they received adequate training and that the commission could review specific discriminatory practices, including harassment that prevents women from advancing. It should be understood, however, that the act did not entirely eliminate workplace discrimination; its impact varied for women in both blue-collar and white-collar roles. The earlier work environment was frequently hostile to women, impeding career advancement, and the Glass Ceiling Act provided a mechanism for challenging that hostile environment.

In Yates v. Avco Corp., for instance, a plaintiff's supervisors repeatedly made offensive comments and requests for sexual favors, creating an unlawful hostile work environment (Office of the Federal Register (U.S.), 2012). Similarly, Meritor Savings Bank v. Vinson (1986) established that under the Civil Rights Act of 1964, businesses are responsible for sexual discrimination in the workplace and that such discrimination results in economic harm to the victim (Enotes, 2006). The harm is not only economic; it also encompasses loss of career opportunity and professional experience.

The Federal Privacy Act: Scope and Protections

The Federal Privacy Act regulates how federal agencies may use personal information that individuals supply when obtaining government services. The act applies to employees who handle data and records — particularly governmental records — and also governs records and documents created by employers about their employees, including interview notes and performance summaries. It addresses the extent to which employees or individuals have the right to view such records. Because certain activities are protected by the First Amendment, records may not be kept regarding the manner in which an individual exercises fundamental rights, and all records must be handled in accordance with the Privacy Act. No person is authorized to disclose the contents of an individual's records under the act except where there is an express statutory provision permitting such disclosure (Office of the Federal Register (U.S.), 2012).

The act and its associated regulations apply to all agencies that deal with public data, particularly executive departments and agencies of the United States federal government that publish general and permanent rules in the Federal Register. Private information must not be disclosed to a third party that had no association with the entity. While the privacy rule imposes conditions on the disclosure of information, it does not restrict the use of information for treatment, payment, or other publicly necessary purposes.