New York Law Review

Tag: Bona Fide Occupational Qualification

  • Matter of Johnson v. Oneida County Sheriff’s Dept., 60 N.Y.2d 970 (1983): Bona Fide Occupational Qualification (BFOQ) Exception to Sex Discrimination

    Matter of Johnson v. Oneida County Sheriff’s Dept., 60 N.Y.2d 970 (1983)

    An employer asserting a bona fide occupational qualification (BFOQ) defense to a charge of sex discrimination must demonstrate that the qualification is reasonably necessary to the normal operation of the business and that there are no reasonable alternatives available.

    Summary

    Marie Johnson, a female Deputy Sheriff correction officer, was denied a promotion to sergeant in the male wing of the Oneida County jail. The Sheriff’s Department argued that being male was a bona fide occupational qualification (BFOQ) because of male inmate privacy concerns during cell inspections. The New York Court of Appeals held that the Sheriff’s Department failed to prove that sex was a BFOQ, as they did not demonstrate that no reasonable alternatives existed to protect inmate privacy while allowing female sergeants to supervise the male wing. The court emphasized the narrow scope of the BFOQ exception to anti-discrimination laws.

    Facts

    Marie Johnson was a qualified female Deputy Sheriff correction officer working in the female housing unit of the Oneida County jail.
    She passed the civil service promotional exam for correction officer sergeant and ranked higher than the male candidate who was ultimately promoted.
    Johnson was denied the promotion solely because the vacancy was in the male wing of the jail, and the Sheriff’s Department assigned only male sergeants to that wing.
    The Sheriff’s Department argued that assigning female sergeants to the male wing would violate the privacy rights of male inmates during cell inspections, as the cells contained open toilets and showers, and the inmates lacked sleepwear.

    Procedural History

    Johnson filed a complaint with the New York State Division of Human Rights, alleging unlawful sex discrimination.
    The Division of Human Rights found in favor of Johnson, concluding that the Sheriff’s Department failed to prove that sex was a BFOQ for the position.
    The Appellate Division reversed the Division’s determination.
    The New York Court of Appeals reversed the Appellate Division’s order, reinstating the Division of Human Rights’ finding of unlawful discrimination.

    Issue(s)

    Whether the Oneida County Sheriff’s Department proved that being male was a bona fide occupational qualification (BFOQ) for the position of correction officer sergeant in the male wing of the jail, justifying the denial of promotion to a qualified female candidate.

    Holding

    No, because the Sheriff’s Department failed to demonstrate that the sex-based qualification was reasonably necessary to the normal operation of the jail and that there were no reasonable alternatives available to protect the privacy interests of the male inmates.

    Court’s Reasoning

    The court applied Section 296 of the Human Rights Law, which prohibits sex discrimination in employment, and Section 300, which mandates liberal construction of the Human Rights Law to accomplish its purposes.
    The court acknowledged the BFOQ exception but emphasized its narrow scope, requiring the employer to prove that the sex-based qualification is reasonably necessary and not susceptible of reasonable alternatives. The court referenced Dothard v. Rawlinson, 433 U.S. 321 (1977), underscoring the “extremely narrow” nature of the BFOQ exception.
    The court found that the Sheriff’s Department failed to meet this burden because they did not demonstrate that alternatives, such as installing shower curtains or providing sleepwear to inmates, were infeasible or prohibited.
    The court highlighted that the Sheriff acknowledged existing procedures to protect inmate privacy during inspections by officers of the opposite sex, and he offered no reason why those interests could not be further accommodated. The court further suggested the possiblity of having male guards walk through the cellblocks during unannounced inspections, while a female sergeant maintained radio contact at the desk, as a reasonable alternative.
    The court distinguished Carey v. New York State Human Rights Appeal Bd., noting that in Carey, the determination of the Division of Human Rights was being confirmed, whereas, in this case, it was being challenged. The court also noted that Carey involved the special security needs of a correctional facility housing female inmates, which necessitated intrusive measures like body searches, not applicable in this case.
    The dissent argued that the Division’s determination was a reasonable conclusion based on the record and should not have been disturbed. The dissent further explained that the Sheriff’s Department failed to show a reasonable degree of necessity for its refusal to promote Ms. Johnson solely on the basis of her sex.

  • Baker v. Board of Education, 68 N.Y.2d 924 (1986): Age as a Bona Fide Occupational Qualification

    Baker v. Board of Education, 68 N.Y.2d 924 (1986)

    An employer may terminate employment based on age if age is a bona fide occupational qualification reasonably necessary to the performance of the employee’s duties.

    Summary

    This case concerns a school bus driver who was forced to retire at age 65 due to a state regulation. The New York Court of Appeals reversed the Appellate Division’s order and remitted the case. The central issue was whether the age restriction for school bus drivers constituted a bona fide occupational qualification (BFOQ). The court held that amendments to New York law during the appeal necessitated a determination of whether the age limit was a BFOQ reasonably necessary for the job, impacting the plaintiff’s entitlement to back pay and benefits.

    Facts

    The plaintiff, a school bus driver, was compelled to retire at age 65. This retirement was mandated by a New York regulation (8 NYCRR 156.3[b]) that set the maximum age for school bus drivers at 65. The regulation was established by the Commissioner of Education under the authority of Education Law § 3624. The plaintiff challenged the constitutionality of the regulation following his mandatory retirement.

    Procedural History

    The Supreme Court initially ruled the regulation unconstitutional and ordered the plaintiff’s reinstatement. The Appellate Division reversed, finding the regulation constitutional based on federal precedent (Vance v. Bradley). However, the Appellate Division also found a conflict with the then-existing Retirement and Social Security Law § 501(15), which set the mandatory retirement age at 70. The Appellate Division modified the Supreme Court’s order to grant partial summary judgment to the plaintiff, stating that the regulation violated the plaintiff’s statutory rights unless alternative employment was offered. The case then reached the New York Court of Appeals.

    Issue(s)

    1. Whether the age limit of 65 for school bus drivers constitutes a bona fide occupational qualification (BFOQ) reasonably necessary to the performance of their duties, according to amended New York law.

    Holding

    1. No, a determination must be made by the Supreme Court as to whether being under 65 years old is a bona fide occupational qualification because amendments to the Retirement and Social Security Law and Executive Law now permit termination of employment based on age if it is a BFOQ.

    Court’s Reasoning

    The Court of Appeals focused on the impact of intervening legislation. Specifically, the Laws of 1984 (ch 296) amended the Retirement and Social Security Law and Executive Law § 296 (3-a). These amendments allowed for termination of employment based on age if age is a bona fide occupational qualification “reasonably necessary” to the performance of the employee’s duties. The court cited Post v. 120 E. End Ave. Corp. and Mayer v. City Rent Agency to support the application of these amendments to the ongoing litigation. Because of these changes, the court reasoned that it was necessary to remit the case to the Supreme Court to determine whether the age restriction for school bus drivers met the BFOQ standard. The court emphasized that the determination of whether age is a bona fide occupational qualification is critical for assessing the plaintiff’s entitlement to back pay and other benefits resulting from his involuntary retirement. The court did not delve into specific arguments related to the BFOQ, but rather focused on the procedural necessity of applying the amended law.