Ill. Admin. Code tit. 56 § 5210.70

Current through Register Vol. 48, No. 49, December 6, 2024

Section 5210.70 - Bona Fide Occupational Qualifications

a) Section 2-104(A) of the Act, (Ill. Rev. Stat. 1983, ch. 68, par. 2-104(A)), provides that it is not a violation for an employer, employment agency or labor organization to discriminate based on a criterion which constitutes a bonafide occupational qualification (BFOQ) for the particular job. This exemption is narrowly construed, and the person claiming the exemption bears the burden of establishing that it is available in the particular instance. A BFOQ is properly applied as an exclusion of an entire class of individuals on the basis of a standard that is necessary for safe and efficient job performance.

b) The following are examples of instances in which sex cannot constitute a BFOQ:

1) the refusal to select an individual for a position based on assumptions as to the comparative employment characteristics between sexes, e.g., the assumption that the turnover rate among women is higher than among men, or that women are less willing to work overtime.

2) the refusal to select an individual for a position based on a characterization attributed generally to members of either sex. Such characteristics may include, e.g., the belief that women are less capable of aggressive sales or less suited for physical labor, or that men are less adept at jobs requiring manual dexterity.

3) the refusal to select an individual because the preferences of co-workers, clients or customers run toward persons of a particular sex, or the custom or tradition has been to employ persons of a particular sex.

4) the refusal to select an individual because the employer may have to provide separate facilities for a person of the opposite sex, unless the expense would be clearly unreasonable, taking into consideration, among other factors, the cost involved, the nature of the employer's operation and the employer's ability to pay.

5) the refusal to select a woman for a position based on the belief that women with children should not work or are less reliable employees.

6) the refusal to select a woman for a position based on the fear that pregnancy may in the future render her unable to work.

c) The following are examples of instances in which sex may constitute a BFOQ:

1) where a person of a particular sex is necessary to provide authenticity or genuiness, e.g., an actor to play a male role or a woman to model feminine apparel.

2) where community standards not otherwise inconsistent with the Act demand that a person of a particular sex be selected, e.g., a male to be a men's washroom attendant, a woman to work as a fitter in a girdle or brassiere establishment.

Ill. Admin. Code tit. 56, § 5210.70