127.11 Sex as bona fide occupational qualification (“BFOQ”)

Whether the BFOQ exception can be invoked has to be determined on a job-by-job basis. In this case, sex was a bona fide occupational qualification for one youth care worker of each sex for each shift in the secure and non-secure sections of the Respondent’s juvenile detention facility. This is reflected in the staffing structure developed by the Respondent and the union, in which there was to be, for each of the two wings of the facility, one care worker position on each shift which would be male-only and one care worker position on each shift which would be female-only. However, sex was clearly not a bona fide occupational qualification for the particular job which was at issue in this case. That position, a split-shift care worker position, was specifically designated as a gender-neutral position. The county and the union could therefore not invoke the BFOQ exception as a defense of their direct and explicit discrimination based on sex in the filling of the gender-neutral split-shift position. Schmocker v. County of La Crosse (LIRC, 03/31/04).

There are two types of cases in which the bona fide occupational qualification (BFOQ) defense arises. In one situation, an employer refuses to hire members of one class because of its perception of the physical capacity of members of that class to perform the job. In the second situation, the employer refuses to hire any members of one sex due to its perception of the privacy interests of its customers. When an employer discriminates on the basis of sex or gender, but raises a BFOQ defense based on the privacy concerns of the employer’s customers or clients, the employer bears the heavy burden of showing: (1) a factual basis for its assertion that hiring a member of one sex would undermine the essence of the employer’s business operation, and (2) that due to the nature of the business, it would not be feasible to assign job responsibilities in a selective manner (or to take alternative action) so as to avoid a collision with the privacy rights of the clients and customers. In this case, the Respondent did establish that having a woman fill a janitor position at its county Expo Center was a BFOQ. Vyse v. Dane Co. Human Relations Dep’t (LIRC, 07/16/98), aff’d sub nom. Vyse v. LIRC (Dane Co. Cir. Ct., 03/03/99).

Due to the narrow interpretation of the BFOQ exception, the burden put on the defendant to establish the exception is very heavy. The employer must show that it had a factual basis for believing that hiring any members of one sex would undermine the business operation. When the BFOQ defense is based on privacy interests of the customer, the employer must show that it would not be feasible to assign job responsibilities in a selective manner so as to avoid a collision with the privacy rights of customers. Moore v. Cedar Grove-Belgium Sch. Dist. (LIRC, 04/29/92).

A school district failed to establish that a bona fide occupational qualification justified its decision to reduce a male with more seniority to a forty percent position while allowing a female with less seniority to remain full time. The school district’s contention that it was legally required to provide supervision in the girls’ locker and shower rooms and that its concern for the invasion of privacy of female students justified assignment of a female teacher to supervise the girls’ locker and shower rooms was unconvincing. Moore v. Cedar Grove-Belgium Sch. Dist. (LIRC, 04/29/92).

The requirement that a male fill the position of youth counselor was a BFOQ. The position required a same-sex role model in the treatment of pre-delinquent boys. Robinson v. Kenosha Youth Found. (LIRC, 04/30/82).

An employer met the statutory requirements for a BFOQ where it designated a limited number of positions based upon the privacy and role model needs of its patients. Chadwick v. DHSS (Wis. Pers. Comm’n, 04/02/82).

The practice of hiring child care workers in a co-educational juvenile detention center on the basis of sex to maintain a sexually balanced staff was justified in order to provide role models and personal counseling, and to insure the juvenile’s right to privacy. Stonecipher v. DILHR (Dane County) (Dane Co. Cir. Ct., 05/28/76).

Sex was not a BFOQ for a position with a youth camp for boys only, and the refusal to consider a qualified female applicant because of her sex violated the Act. Griesbach v. State (DILHR, 04/13/76).

Where all female employees were excluded from the higher paying and longer lasting seasonal work in a nursery because it involved heavy manual labor, the employer failed to show that the character of its seasonal work required limiting the positions to males. Wellner v. DNR (DILHR, 02/12/75).

The burden of demonstrating the applicability of a BFOQ rests with the employer. An employer could not justify its policy of hiring only males for a hotel manager position on the basis that it was unsafe for women to enter the rooms of males. Kurber v. Ramada Sands (DILHR, 07/19/71).

DILHR looks to the interpretations of the federal Title VII BFOQ clause in interpreting the corresponding exception in the Wisconsin Act, and it is well settled that both exceptions are to be narrowly construed. Kurber v. Ramada Sands (DILHR, 07/19/71); City of Milwaukee v. DILHR (Williams) (Dane Co. Cir. Ct., 02/24/71).