Current through Register Vol. 48, No. 38, September 20, 2024
a) Section 2-104(A) of the Act, (Ill. Rev.
Stat. 1983, ch. 68, par. 2-104(A)), provides that it is not a violation for an
employer, employment agency or labor organization to discriminate based on a
criterion which constitutes a bonafide occupational qualification (BFOQ) for
the particular job. This exemption is narrowly construed, and the person
claiming the exemption bears the burden of establishing that it is available in
the particular instance. A BFOQ is properly applied as an exclusion of an
entire class of individuals on the basis of a standard that is necessary for
safe and efficient job performance.
b) The following are examples of instances in
which sex cannot constitute a BFOQ:
1) the
refusal to select an individual for a position based on assumptions as to the
comparative employment characteristics between sexes, e.g., the assumption that
the turnover rate among women is higher than among men, or that women are less
willing to work overtime.
2) the
refusal to select an individual for a position based on a characterization
attributed generally to members of either sex. Such characteristics may
include, e.g., the belief that women are less capable of aggressive sales or
less suited for physical labor, or that men are less adept at jobs requiring
manual dexterity.
3) the refusal to
select an individual because the preferences of co-workers, clients or
customers run toward persons of a particular sex, or the custom or tradition
has been to employ persons of a particular sex.
4) the refusal to select an individual
because the employer may have to provide separate facilities for a person of
the opposite sex, unless the expense would be clearly unreasonable, taking into
consideration, among other factors, the cost involved, the nature of the
employer's operation and the employer's ability to pay.
5) the refusal to select a woman for a
position based on the belief that women with children should not work or are
less reliable employees.
6) the
refusal to select a woman for a position based on the fear that pregnancy may
in the future render her unable to work.
c) The following are examples of instances in
which sex may constitute a BFOQ:
1) where a
person of a particular sex is necessary to provide authenticity or genuiness,
e.g., an actor to play a male role or a woman to model feminine
apparel.
2) where community
standards not otherwise inconsistent with the Act demand that a person of a
particular sex be selected, e.g., a male to be a men's washroom attendant, a
woman to work as a fitter in a girdle or brassiere establishment.
