Recent litigation against the Twin Peaks restaurant chain has sparked renewed interest in the BFOQ defense, and provides yet another example to employers that hiring practices involving the selection of individuals on the basis of protected characteristics (i.e., sex) face close scrutiny. As we have seen from previous cases involving Lawry’s and Hooter’s, it can be extremely difficult for companies to justify why or how an employee’s physical appearance satisfies the bona fide occupational qualification defense. Given that there has been minimal guidance from the courts on this issue, with most cases settling prior to trial, employers should demonstrate extreme caution in using sex, race, or national origin when making employment decisions.
DCI’s Dr. Michael Aamodt, Principal Consultant, wrote an article featured in SIOP’s January 2017 TIP publication. For those interested in additional information on lawsuits claiming sex as a BFOQ defense for restaurant servers, please see Really, I Come Here for the Food: Sex as a BFOQ for Restaurant Servers for the full featured story.
By Brittany Dian, Associate Consultant, DCI Consulting Group
