Bona Fide Occupational Job Qualifications
Bona Fide Occupational Job Qualifications (BFOQs) are the employment qualifications that the law allows employers to take into consideration while making hiring and retention decisions. The law requires that the employment qualifications be concerned with an essential job duty that is a necessary part of business operation. Under the BFOQs, employers are legally allowed to hire employees based on sex, age, ethnicity, or national origin if there is sufficient proof that the aforementioned qualifications are an essential job duty or bona fide job qualifications (Beever, 2007). Although Title VII of the Civil Rights Act of 1964 prohibits the employers from making any form of discrimination against employees, the law provides exemptions where the employer is allowed to discriminate based on the nature or kind of the job. However on many occasions, exemptions are only allowed under narrow limits, and usually pertains to religion and gender of employees.
With regard to the above, CARDWARE does not have genuine BFOQs in its ad. For the BFOQs to be genuine, CARDWARE must be able to prove that an older person cannot be able to perform the duties of a younger person. From the case study, Petunia was middle aged and slightly plump, meaning she could be able to perform all essential duties once hired. The company’s slogan says that one doesn’t have to “be an athlete to look and feel like one.” This means that even though its line of sales is sportswear, anyone could still purchase these items and not necessarily athletes. In consideration of this, there is no legal ground for salespersons to be athletic as the ad requires. The sportswear could be sold to anyone. CARDWARE’s defenses could be that there was need to hire slender and younger employees who appear sporty. However, such a defense would not hold since not all athletes are slender or young, and even then older candidates could still perform the job well just like the younger employees.
If Petunia brought a lawsuit on negligence against CARDWARE and The Sporty One it would not hold. A negligence lawsuit can only be brought where one party fails to use reasonable care and causes harm to another one. Under negligence law, a person is liable if he/she fails to take some form of action that any reasonable person would take. In addition, a person is liable under negligence if he/she does something that a normal or reasonable person cannot do (Craig, 2007). The companies cannot be held responsible for Noah’s behavior since Petunia failed to act in accordance with the law. Petunia’s actions constitute harassment, as the best option for her was to seek legal redress. CARDWARE can use comparative negligence defense in this case. In this type of defense, the law analyses the percentage of negligence exhibited by both parties. CARDWARE had little to do with the confrontation that ensued between Petunia and Noah. In any case, the manager had explained to Petunia why she had not been hired.
Hetty Whitestone’s estate can claim that CARDWARE was responsible for Hetty’s death. This is because of the employer is held liable for employee’s acts or behavior. This may occur even if the employer was not directly involved in the physical harm of the other person. The court holds that employers direct employee behavior and thus the outcomes of employee behavior may also impact the employer (Craig, 2007). Employers are responsible for negligent acts of employees. CARDWARE’s defenses may be that Noah acted purely based on personal motives. Another possible defense is that the company exercised reasonable care.
Beever, A. (2007). Rediscovering the law of negligence. Oxford: Hart.
Craig, R. L. (2007). Systemic discrimination in employment and the promotion of ethnic equality. Leiden: Martinus Nijhoff.
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