Is it ever legal for an employer to hire based on gender, religion, age, etc.?

There are cases where being male or female, of a certain religion, or within a particular age range, may be what is known as a bona fide occupational qualification for a job.

In these situations, an employer may distinguish between employees based on otherwise protected status and hire accordingly. For example, only men may qualify for male roles in a movie, and only men or boys of a certain age for the role of a teenager. It is also acceptable for a kosher deli to require its butchers to be Jewish. However, race and color are never considered bona fide occupational qualifications.

Note that requiring candidates for a job to meet certain other qualifications is clearly an acceptable practice. But the qualifications must be demanded of all applicants; for example, a prospective employer cannot ask one candidate how fast he or she types, and then hire a candidate to whom he has not asked this question.

In addition, the qualifications must actually be necessary for the person to fulfill the requirements of the job, and they cannot discriminate against a particular group of people based on race, color, gender, etc. For example, a company hiring construction workers, who must be able to lift and carry heavy objects can require candidates to be able to lift and carry objects of that weight, but cannot require the candidates to be men as opposed to women.

Clearly the requirements of construction work would preclude someone confined to a wheelchair, but a secretarial position would not. If a job requires work on weekends, a prospective employer cannot ask a candidate if their religion or child care arrangements prohibit weekend work, but can ask if there is anything that would prohibit weekend work.

There can be a fine line between legitimate qualifications required to perform the necessary tasks of a particular job, and qualifications that only serve to discriminate against a specific group of people based on traits for which discrimination is prohibited by law. If you think there may be a chance that discrimination was involved in some aspect of your employment, contact an attorney, who will help you sort through the facts of your situation, and determine whether or not you have a case.

Case Studies: Bona Fide Occupational Qualifications in Employment

Case Study 1: Gender-Based Hiring in Film Industry

A film production company is casting for a movie that requires a male lead character. They are legally allowed to specify that only male actors can audition for this particular role. The requirement is considered a bona fide occupational qualification because it is essential for the authenticity and artistic vision of the film.

The company conducts auditions and ultimately hires a male actor who best fits the role. In this case, the employer’s decision to hire based on gender is legally permissible due to the specific requirements of the job.

Case Study 2: Religious Requirement in Kosher Deli

A kosher deli specializes in preparing and serving kosher food in accordance with Jewish dietary laws. As part of their religious practices and customer expectations, they require their butchers to be Jewish. This religious requirement is considered a bona fide occupational qualification because it directly relates to the nature and purpose of the job.

The deli ensures that their butchers understand and adhere to the specific religious requirements associated with handling and preparing kosher food. By hiring based on religion, the deli maintains the authenticity and integrity of their religious practices.

Case Study 3: Age Limitation in Teen Acting Roles

A production company is casting for a role that requires an actor to portray a teenager. Due to legal restrictions and labor laws, they can specify an age range for the role, such as 14-18 years old. This age limitation is considered a bona fide occupational qualification as it aligns with the requirements of the character and complies with legal regulations.

The company conducts auditions within the specified age range and ultimately hires an actor who fits the role and meets the age requirements. The employer’s decision to hire based on age in this scenario is legally justifiable.