13.2.5 Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) of 1990 states people may not be discriminated against due to the nature of their disability. A disability is defined as a physical or mental impairment that limits one or more major life activities such as hearing, walking, and breathing. An employer must make reasonable accommodations for the performance of the job of an employee with disabilities. This might include making the work facility accessible with ramps, providing readers for blind personnel, or allowing for more frequent breaks. The ADA has now been expanded to include individuals with alcoholism, former drug use, obesity, or psychiatric disabilities. The premise of the law is that individuals with disabilities can contribute to an organization and they cannot be discriminated against because of their disabilities (O'Keefe & Bruyere, 1994).

The Civil Rights Act and the Age Discrimination in Employment Act make provisions for bona fide occupational qualifications (BFOQs), which are requirements of certain occupations for which denying an individual employment would otherwise violate the law. For example, there may be cases in which religion, national origin, age, and sex are bona fide occupational qualifications. There are no BFOQ exceptions that apply to race, although the first amendment protects artistic expressions, such as films, in making race a requirement of a role. Clearcut examples of BFOQs would be hiring someone of a specific religion for a leadership position in a worship facility, or for an executive position in religiously affiliated institutions, such as the president of a university with religious ties. Age has been determined to be a BFOQ for airline pilots; hence, there are mandatory retirement ages for safety reasons. Sex has been determined as a BFOQ for guards in male prisons.

Sex or gender is the most common reason for invoking a BFOQ as a defense against accusing an employer of discrimination (Manley, 2009). Courts have established a three-part test for sex-related BFOQs that are often used in other types of legal cases for determining whether a BFOQ exists. The first of these is whether all or substantially all women would be unable to perform a job. This is the reason most physical limitations, such as “able to lift 30 pounds,” fail as reasons to discriminate because most women are able to lift this weight. The second test is the “essence of the business” test, in which having to choose another gender would undermine the essence of the business operation. This test was the reason the now defunct Pan American World Airways (i.e., Pan Am) was told it could not hire only women flight attendants. Hiring men would not have undermined the essense of this business. On a deeper level, this means that hiring cannot be made purely on customers’ or others’ preferences. The third and final test is whether the employer cannot make reasonable alternative accommodations, such as reassigning staff so that a woman does not have to work in a men-only part of a jail or other gender-specific facility. Privacy concerns are a major reason why discrimination based on gender is upheld by the courts, for example in situations such as hires for nursing or custodial staff (Manley, 2009). Most cases of BFOQs are decided on a case-by-case basis and these court decisions inform policy and future case decisions.

What Do You Think?

Hooters and BFOQ Laws

Figure 13.13 Hooters restaurants only hire female wait staff. (credit: “BemLoira BemDavassa”/Flickr)

The restaurant chain Hooters, which hires only women wait staff and has them dress in a sexually provocative manner, is commonly cited as a discriminatory employer. The chain would argue that the women employees are an essential part of their business in that they market through sex appeal and the wait staff attract customers. Men have filed discrimination charges against Hooters in the past for not hiring them as wait staff simply because they are men. The chain has avoided a court decision on their hiring practices by settling out of court with the plaintiffs in each case. Do you think their practices violate the Civil Rights Act? See if you can apply the three court tests to this case and make a decision about whether a case that went to trial would find in favor of the plaintiff or the chain.