The Bfoq Defense: Title Vii's Concession to Gender Discrimination

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees when making employment decisions.1 Nevertheless, when employers do partake in discriminatory decision-making, they are offered the statutory defense of the bona fide occupational qualification (BFOQ). The BFOQ defense allows employers to intentionally discriminate based on gender by adopting an otherwise facially discriminatory employment practice if reasonably necessary to the normal operation of the business.2 While the Supreme Court has held that this defense should be interpreted narrowly, it is still available if employers are able to prove that all or substantially all of the members of one gender cannot successfully perform the job duties essential to fulfill the employer's primary business function.3 If an employer is successful in offering the defense, gender discrimination is legally permitted. Thus, by utilizing the BFOQ defense, employers are permitted to partake in the exact discriminatory practices that Title VII directly seeks to forbid. Accordingly, Title VII seems to acknowledge that under certain circumstances discrimination really is acceptable. However, a deeper examination of these circumstances invites the question: Should the BFOQ exception still exist? Because permitting discrimination under Title VII seems fundamentally contrary to the anti-discrimination purpose of the statute, this article questions whether the BFOQ defense is consistent with the aims of Title VII or whether, in actuality, the defense undermines the Act's effectiveness by providing a loophole for employers to participate in the discriminatory practices Title VII seeks to forbid. In the end, this article considers four differing viewpoints on the BFOQ defense: (1) the BFOQ defense should be broadened to represent the needs of society and the practices that some courts already permit; (2) the defense should remain as is because it appropriately balances customer and