Current through Register Vol. 50, No. 6, December 1, 2023
RELATES TO: KRS 344.040, 344.050, 344.060,
344.070, 29 U.S.C. 623(f), 42 U.S.C. 2000e-2(e)
NECESSITY,
FUNCTION, AND CONFORMITY: This administrative regulation establishes the
procedures to be used by an employer, licensing agency, labor organization or
employment agency in advertising for jobs or licensing opportunities.
Section 1. Definition. Bona fide occupational
qualification is defined in 42 USC 2000e-2(e) and 29 USC 623(f).
Section 2. Help Wanted Notices or
Advertisements.
(1) An advertisement or notice
shall utilize a neutral job qualification, title, term, phrase or description
unless a person's sex, religion, age between forty (40) and seventy (70), or
national origin is deemed by the commission to be a bona fide occupational
qualification.
(2) Employers shall,
if possible, utilize gender neutral position titles and job descriptions
selected from the commission's listing of "Gender Neutral Employee
Advertisement" or "Gender Neutral Employment Terminology."
Section 3. Bona-fide Occupational
Qualification.
(1) An employer, labor
organization, licensing agency, or employment agency shall have the burden of
establishing with the commission that either sex, religion, age between forty
(40) and seventy (70), or national origin is a bona fide occupational
qualification.
(2) A sex or
gender-based bona fide occupational qualification shall:
(a) Be necessary for reasons of personal
modesty or privacy; and
(b) Comply
with EEOC "Guidelines on Job Opportunity Advertising on the Basis of
Sex".
Section
4.
(1) A person who intends to
publish, print, circulate, or display a job advertisement may request the
commission to determine whether sex, religion, age between forty (40) and
seventy (70), or national origin is a bona fide occupational qualification for
the job to be advertised.
(2)
(a) Within three (3) workdays of receipt of
the request, the commission shall:
1. Make a
determination in writing; and
2.
Forward its written determination.
(b) The determination of the commission shall
be based on:
1. The specific job;
2. Whether the qualification is reasonably
necessary to the normal operation of the business; and
3. Any other pertinent factors.
Section 5.
Newspapers and other publications which print employment advertisements shall
be encouraged by the commission to:
(1)
Maintain lists of gender-neutral terms; and
(2) Instruct their employees to advise
advertisers of gender neutral job qualifications, titles and
descriptions.
Section 6.
(1) In a conciliation agreement or order, the
commission may include a provision requiring the respondent to use the term
"equal opportunity employer", or a substantially similar term, in a notice or
advertisement of employment or licensing opportunity.
(2) Persons advertising for employment
opportunities shall be encouraged by the commission to use the terms specified
in subsection (1) of this section in a notice or
advertisement.
Section 7.
Materials Incorporated by Reference.
(1) The
following material is incorporated by reference:
(a) "Gender Neutral Employee Advertisement
(February, 1993)";
(b) "Gender
Neutral Employment Terminology (February, 1993)";
(c) "EEOC Guidelines on Job Opportunity
Advertising on the Basis of Sex: 29 CFR 1604.5 - Job Opportunities
Advertising".
(2) This
material may be inspected, copied or obtained:
(a) At the offices of the Kentucky Commission
on Human Rights, The Heyburn Building, Suite 700, 332 West Broadway,
Louisville, Kentucky 40202; or
(b)
By calling:
1. (502) 595-4024;
2. (800) 295-5566;
3. (502) 595-4084, (TDD), for the hearing
impaired;
4. Kentucky Relay
Service, (800) 648-6056 (TTY/TDD).
HR-4; 1 Ky.R. 238; eff. 1-8-1975; 18 Ky.R. 2868; 3184;
eff. 4-14-1992; 19 Ky.R. 2083; 2393; eff. 5-10-1993; TAm eff. 9-12-2018; Crt
eff. 1-29-2020.
STATUTORY AUTHORITY: KRS 344.190,
344.080, 29 C.F.R. 1604.5
