Customer Preference and the Bona Fide Occupational Qualification Defense Under Title VII of the Civil Rights Act of 1964: The Customer is Not Always Right   Tags: labor_and_employment_law  

Although Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion, sex, or national origin in employment, employers who face lawsuits under Title VII may partially or fully escape liability by raising the bona fide occupational qualification defense (BFOQ). Section 703(e) of the statute provides the exemption that allows discrimination in the instances where sex is a BFOQ reasonably necessary to the normal operation of the particular business for which the exception is claimed. In Dothard v. Rawlinson, 433 U.S. 321 (1977), the Supreme Court found that the BFOQ is "an extremely narrow exception to the general prohibition of discrimination on the basis of sex" in upholding a rule requiring prison guards in close contact with inmates to be the same gender as those inmates. Id. at 334. Later, the Court in International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) reasserted the rigors of BFOQ in rejecting the defendant's argument that fears for the safety of fertile women and their fetuses justified exclusion of such women from working in its battery department. There, the Court found that the employer's concerns regarding the safety and health of women and their fetuses, while based on apparently good intentions, were not directly related to job performance.

Generally, courts do not find customer preference alone to be a BFOQ to an employment discrimination claim under Title VII. However, federal case law has shown that a narrow set of circumstances exist in which customer preference may be considered. The most common of these is where an employer attempts to establish a BFOQ defense based on privacy interests. A second potential situation where customer preference may be taken into account involves authenticity interests (e.g. a Chinese restaurant discriminating on the basis of national origin where striving for "authenticity" is the essence of the employer's business). However, case law addressing the latter situation has been scant.

This web research guide presents a general overview and legal issues relating to customer preference as a factor in federal courts’ consideration of the bona fide occupational qualification defense (BFOQ) for employers who face lawsuits involving alleged discrimination based on religion, sex, or national origin under Title VII of the Civil Rights Act of 1964 (Note: BFOQ does not apply to discrimination based on race). By compiling legal materials related to this subject into a single resource, the author hopes students, employers, and legal professionals with little or no familiarity with the subject matter will find this guide a useful starting point to their research.

Keith Hayasaka, in the Spring of 2007, is a second year law student at the Georgia State University College of Law in Atlanta. He is a graduate of Vanderbilt University and spent several years in Southern California working in feature film development, production, and distribution before entering law school. At GSU Law, he is a member of the Moot Court Board and Mock Trial Team, a Justice on the Honor Court, and has served as a graduate research assistant in the law library. He intends to pursue a career in civil litigation.

Bibliographies on this Web site were prepared for educational purposes by law students as part of Nancy P. Johnson's Advanced Legal Research course. The Law Library does not guarantee the accuracy, completeness, or usefulness of any information provided. Thorough legal research requires a researcher to update materials from date of publication; please note the semester and year the bibliography was prepared.

The annotations provided here are for educational purposes only and not intended to constitute legal advice. The author does not warrant or assume any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed herein. This research guide is not comprehensive and should be viewed as a starting point. Legal materials are updated often and cases may be overturned or questioned. Therefore a user of this guide should always check any case or statute to ensure that it is still good law. Further, secondary sources, such as journals and treatises, receive new annotations and updates on a regular basis.

Finally, if you have questions regarding your research, feel free to talk to one of your reference librarians. Their advice could save you considerable time and effort.

This research guide was prepared for Professor Nancy Johnson's advanced legal research class and was last updated on April 10, 2007.