The notion of bona fide occupational qualifications (BFOQ) refers to the legal term meaning “in good faith”, which expresses the intentional discrimination that is normal for the provision of certain business operations. For example, a female military applied for work at the military service may receive the refusal because of her gender, since the combat position she applied for is accessible only for men. In this case, discrimination is legal as it corresponds to BFOQ. This concept is important in jurisprudence, especially when using the law of justice. However, the mentioned concept does not concern such issues as race and ethnicity (Berman, 2000). The debates around the privacy and appropriateness of BFOQ are rather controversial. This paper aims at providing convincing arguments to abolish BFOQ in the military because it contradicts the Civil Acts Right and fair employment.
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First, by allowing some cases of class discrimination, BFOQ acts as an exception to Title VII of the Civil Acts Right accepted in 1964 (Shaman, 1971). It violates fair employment practices, focusing on the applicants’ sex, religion, or nation. The use of the given regulation is based on the outdated doctrine of sex classification that cannot be considered correct nowadays. The fact that men and women have different bodies should not serve as a distinguishing factor and leave any of them without a good job. In many cases, sex and religion constitute the cultural peculiarities, yet not the innate ones. For example, it is important to mention the situation with women and handicapped. The mentioned categories often have to encounter the refusal for combat positions that are caused by their specific physical characteristics.
Second, BFOQ neglects functional abilities, focusing instead on class attributions in extenso. As noted by Shaman (1971), “employment truly to be considered according to their abilities rather than their class status” (p. 341). The situation is complicated by the fact that there is no clear definition of laws related to class categorization. In this regard, it is possible to agree with Shaman (1971), who claims that the Constitution should prohibit those laws that allow classification by sex or nation. As a result, the status of the potential employees would be clearer, and there would be no need to use BFOQ. The paramount goal of abolishing BFOQ is the achievement of employment equality, which can be accomplished only in case if all applicants would have an equal opportunity to be hired.
Third, the elimination of BFOQ would not force military employers to hire unqualified staff members. According to the views expressed by Berman (2000), many supporters of this proviso consider that BFOQ is advantageous for applicants as well as for employers. They believe that the latter benefit from the opportunity to hire only experienced specialists. Title VII does not force employers to act in the mentioned manner, and the abolition of BFOQ would not change the situation, as emphasized by Shaman (1971). None of the employers should hire applicants without the required knowledge and skills.
To conclude, it should also be noted that BFOQ in the military causes plenty of controversial situations when the court and even the Congress turn out to be confused and encounter difficulties in properly interpreting and applying it in practice. Thus, there are three arguments against BFOQ proviso that are associated with the violation of employment practices: focus on sex, nation, or religion, neglect of functional abilities, and misunderstanding regarding the unqualified staff.
Berman, J. B. (2000). Defining the” essence of the business”: An analysis of title VII’s privacy BFOQ after Johnson controls. The University of Chicago Law Review, 67(3), 749-775.
Shaman, J. M. (1971). Toward defining and abolishing the bona fide occupational qualification based on class status. Labor Law Journal, 22(6), 332-341.