From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: What is a bona fide occupational qualification (“BFOQ”), when is one necessary,  and how does an advertiser get one?

A: Under the Pennsylvania Human Relations Act and its corresponding regulations, employers are prohibited from discriminating against or showing a preference for a person based on race, color, religious creed, ancestry, age, sex, or national origin.  Employment ads that state or imply such a preference or discrimination are illegal.

One exception to this rule exists where the Pennsylvania Human Relations Commission grants a “bona fide occupational qualification” interpretation to an advertiser.  Generally speaking, an advertiser can only obtain a BFOQ where it can prove that the job in question can only be performed by a particular “class” of persons.  (More accurately, the law requires an employer to show that the job could not be performed by the “class” or “classes” being excluded.)  

For example, a department store that wants to hire someone to model women’s swimsuits should be able to show that only women can satisfactorily perform that job (and that men could not).  If the store obtains a BFOQ from the commission, it can place an ad showing a preference for women.  Please note that unless the BFOQ specifically permits it, the advertiser is still prohibited from discriminating against or showing a preference for any other protected class.

The BFOQ interpretation applies only to the particular notice or advertisement in issue.

An employer, employment agency or union can request a BFOQ interpretation for advertising purposes by calling the commission's headquarters, 100 North Cameron Street, Harrisburg, Pennsylvania 17101, (717) 787-4410.  If, after getting the details from the advertiser, the commission decides that a BFOQ is appropriate, it will inform the advertiser verbally and will issue a written interpretation.  The commission's advice is not binding until the employer receives the written interpretation.  

Under the human relations commission's regulations, both the advertiser and the publisher printing the advertisement are responsible for the text of an unlawful ad.  A  newspaper will not be held liable, however, where it relies, in good faith, upon a BFOQ interpretation. A newspaper should not print a discriminatory employment ad until it receives a written BFOQ interpretation from the commission that would permit the running of the advertisement.

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