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June 15, 2010
Bona Fide Occupational Qualifications (BFOQ) and Age Discrimination

In a BLR webinar entitled "Age Discrimination: How to Legally Manage Your Aging Workforce," Michelle Lee Flores, Esq., partner in the Los Angeles office of Greenberg Traurig, LLP described "bona fide occupational qualifications" (BFOQ) as it relates to the federal Age Discrimination in Employment Act (ADEA) of 1967.

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The employer is permitted to adopt policies or standards otherwise prohibited "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." [29 USC Section 623 (f) (1)]

Important considerations in this rule are:

  • It is narrowly construed.
  • "Particular business" is better to be considered as "particular position."
  • The burden is on the employer to demonstrate "reasonable necessity."

This is important in the context of age discrimination. An example of reasonable necessity might be concern for public safety. Still, an employer must demonstrate there is "no acceptable less discriminatory alternative" to employment determination on the basis of age. The operative word in the BFOQ rule is not "reasonable" but "necessity."

Michelle Le Flores, Esq. is a partner in the Los Angeles office of Greenberg Traurig, LLP (www.gtlaw.com). She focuses her practice on employment matters including litigation and compliance matters, focusing as primary counsel in all aspects of litigation.

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