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“Hamilton” — Race Discrimination Allegations and the BFOQ Defense

Recruitment.DPC.3.31.16.jpgOur New York Employment Law Attorney is often asked to discuss the do’s and don’ts of hiring practices. We have written extensively about employment discrimination, and, today, we will discuss a recent case in the news involving the Broadway smash hit Hamilton and its casting notice seeking “non-white” performers.

Casting almost exclusively non-white actors to portray the founding fathers (who were, by most accounts, almost exclusively white men – maybe not Jefferson, but that’s a story for another day), has been controversial and may be a form of artistic expression. After producers ran a casting call specifically seeking “Non-White” performers, however, legal watchdogs and critics have raised the concern that the job posting could be considered discriminatory under federal, state, and/or New York City laws. While no complaint has been filed as of this date, and the producers have since amended the casting call, it does the raise the question – is there ever a legitimate need by an employer to hire or retain members of a certain class?

Under ordinary circumstances, businesses cannot base their hiring decisions on protected characteristics such as race, national origin/ethnicity, and sex (to name only a few.) But there are exceptions, in certain very limited circumstances, when there is a valid reason to give preference or limit employment to a very specific category of person.

Known as Bona Fide Occupational Qualifications, or BFOQs, they are employment qualifications that employers are allowed to consider while making decisions about hiring and retention of employees. The qualification, however, needs to relate to an essential job duty and be considered necessary for operation of the particular business.

Examples that have been found to qualify as BFOQs are:
• Having endurance qualifications for firefighters or law enforcement positions;
• Having a mandatory retirement age for public and mass transit drivers and pilots;
• Requiring that hires for certain key positions within a religious institution belong to the same religious affiliation as the institution; and • Hiring an actor or model of a particular sex, national origin, or race for the purpose of authenticity.

As an example, if a men’s clothing manufacturer wanted to hire models to advertise their clothing, the need to limit their hiring to men makes sense. If the same company, however, wanted to limit their hiring to only men of a certain color or religion, however, they probably wouldn’t qualify for the exception and would most likely found to be discriminating.

Companies have also been unsuccessful in their attempts to argue that certain characteristics are BFOQs. Such was argued by Southwest Airlines back in the 1980’s when they attempted to defend their practice of only hiring women to be flight attendants (then called stewardesses). Male candidates brought suit against the company for the discriminatory conduct, and the Federal Court ultimately found that being a woman was not an essential qualification of being able to do the job of a flight attendant.

In Georgia, two exotic dancers have brought an action against their employer when they were terminated after becoming pregnant. The employer, The Great American Dream, Inc., has been arguing, in sum and substance, that not being pregnant is a BFOQ (in so much as the job requires a certain degree of sex appeal.) While it appears that the matter is still being litigated, and no decision has been reached (and the employer’s motion was denied), the employer raises an intriguing argument.

More recently and locally, the New York City Commission on Human Rights (“CCHR”) issued two decisions touching on this point: on the matter against CU 29 Copper Restaurant & Bar et al. and the matter against Crazy Asylum LLC et al., the CCHR found that placing employment advertisements seeking a “female bartender” and a “pizza man”, and a “waitress”, respectively, constituted unlawful discrimination based on gender.

Best.Practice.Light.Bulb.DOL.Audit.Dollar.Photo.1.18.16.jpgWhile there are almost always exceptions, this is an area where employers should tread incredibly lightly. Take no action until consulting with a qualified professional and developing best practices. Contact us today for a confidential consultation.

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