If you maintain a business practice that excludes an entire group of protected individuals (for example, all women or all individuals with lower back defects), you must prove that the business practice is justified because:

• All or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question; and
• The essential business operation would otherwise be undermined.2

• Before you attempt to use a BFOQ as a defense, consult legal counsel. The courts very narrowly construe BFOQs.

BFOQ is usually asserted in regards to an employee's sex/gender. An employer might argue, for instance that it must have only male employees perform the job.

Considerations that do not justify a BFOQ defense include:

• Customer preference
• An association between sex and height, physical agility or strength
• Traditional job roles
• The necessity of providing separate facilities for one sex
• The fact that an individual is transgender or gender non-conforming, or that the individual's assigned sex at birth is different from the sex required for the job 3

Personal privacy considerations may justify a sex/gender BFOQ in certain limited situations. For more information, see Gender, Sex, Gender Identity and Expression.

1. Govt. Code sec. 12940; 2 CCR secs. 11010, 11031; 293. 42 U.S.C. sec. 2000e-2(e)

2. 2 CCR sec. 11010

3. 2 CCR sec. 11031(a)