CACI 2501 Affirmative Defense—Bona fide Occupational Qualification

California Civil Jury Instructions CACI

2501 Affirmative Defense—Bona fide Occupational Qualification

[Name of defendant] claims that [his/her/nonbinary pronoun/its] decision to [discharge/[other adverse employment action]] [name of plaintiff] was lawful because [he/she/nonbinary pronoun/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

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-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 Clubsupra, 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 Weekssupra, 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 Clubsupra, 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, UAWsupra, 499 U.S. at p. 201.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1032, 1033
Chin et al., California Practice Guide: Employment Litigation, Ch.9-C, California Fair Employment and Housing Act (FEHA), ¶¶ 9:2380, 9:2382, 9:2400, 9:2430 (The Rutter Group)
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)