BFOQ Guidelines Under Overt Discrimination Step1: Is it Overt Discrimination? The policy has a separate policy for men and women. Either employee concedes that they discriminate because of sex or it is evidence from their policies/practices. Step 2: Employer admits to overt discrimination, but isn?t liable if he establish that the policy is a Bona Fide Occupational Qualification. Standard from Cheatwood Burden of proof is on the employer Employer must show reasonable cause/factual basis for believing that all or substantially all of the women would be unable to perform the job safely and efficiently. Must show duties of the job. Business Necessity test: Sex BFOQ is valid only if essence of the business operation would be undermined by hiring both Cases that are BFOQ Cheatwood Phone co had policy against hiring women to be commercial representative because Title VII vest individuals with the power to decide whether or not to take on a unromantic task Diaz v. Pam am Practice of only hiring female to be flight attendance -The fact that customers prefer women does not justify discrimination -Primary function of the airline was to transport passenger's safely from one point to the other. -Male attendants do not seriously affect the operation Healey v. Southwood psychiatric hospital Southwoods assigned Healey to the night shift because it needed a female child care specialist on that shift. Southwood maintain that it?s sex based policy is a necessity to meet the therapeutic needs and privacy concerns of its mixed-sex patient population. Therapeutic goals and privacy concerns justify Southwoods discrimination staffing policy. Business essence that the sexual characteristics of them employee are crucial to the successful performance of the job of child specialist. Dothard A women would pose a real threat to the basic control of the penitentiary and protection of its inmate and the other security personnel UAW v. Johnson Johnson Control Company excluded women who are pregnant or could be pregnant from jobs involving lead exposure. Sex does not interfere with the employee?s ability to perform the job Let the parents make the decision about risk to the child. SEX IS NOT A BFOQ
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