Bona Fide Occupational Qualifications (BFOQ) represent an employment practice that allows discrimination in specific cases, when an applicant’s religion, age, gender or national origin, when such discrimination is justified by the need to ensure normal performance of a job. While BFOQ frequently serve as an important tool of distinguishing between the cases of justified and unjustified discrimination, the practice of applying the BFOQ is associated with a significant degree of controversy (Shaman, 1971).
For instance, a question remains whether the gender-based discrimination in the military shall be considered in light of the BFOQ clause, contained in the 1964 Civil Rights Act. First, it is necessary to mention that the non-discrimination provisions of the Civil Rights Act (the Department of the Army, the Department of the Navy and the Department of the Air Force) (Derry, 2012, p.256). However, as it stems from the specific guidelines, applicable to the service in the military, women can only serve in 384 out of 419 departments of the U.S. military.
While the gender-based restrictions tend to exist in the military, it is reasonable to argue that gender can be viewed as a BFOQ within the context of the military service. A question that is to be discussed below is whether the above gender-related restrictions are to be sustained. An alternative is to abolish the gender-related restrictions in relation to the military service, so that women can have a full access to the military service.
The major argument in favour of abolishing gender-based restrictions in the military deals with reclaiming women as ‘marginalized stakeholders’ (Derry, 2012, p.254) and contributing to their empowerment in the military and in a society in general (Shaman, 1971, p.332). Getting all the gender-based restrictions easily removed from the context of serving in the military can be doubtlessly estimated as a path to gender equality and women’s empowerment. However, it is worth paying attention to the fact that an application of gender as a BFOQ in the military service is still based on the logics, going far beyond stereotypes (e.g., claiming that women are not sufficiently aggressive). Importantly, women’s engagement into the elaboration of the gender-based BFOQ in the military can be seen as a reliable tool of their empowerment. (Baur, 2010, p.239).
First, it is important to mention that sustaining gender as a BFOQ in the military is necessary to get women prevented from entering the jobs that require significant physical strength and endurance. For instance, it is scientifically proved that women are usually not able to lift the same weight as men. Moreover, excessive physical pressures may lead to significant harm to women’s’ health in physical, mental and reproductive dimensions. Nonetheless, if women meet general capacity-related standards and there is no health-related threats, not letting women in can be evidently viewed as a manifestation of discrimination.
Second, it is necessary to remember that females, serving in the military, are often exposed to sexual harassment. The daily service in the military may be concerned with women’s being sexually assaulted by their male colleagues. The situation becomes even more complicated with regard to women’s participation in military conflicts. According to the empirical studies, more than 70 percent of female veterans of the Vietnam War, who sought PTSD relief, reported to having experienced sexual harassment during their military service (Berman, 2000, p.760). Nevertheless, it is important to understand that just keeping women away from the military would not solve the issue. It is rather advised to provide women with respective self-defense skills.
References
Baur, V.E., Abma, T.E., Widdershoven, G.A. (2010). Participation of marginalized groups in evaluation: Mission Impossible? Evaluation and Program Planning, 33(3), pp.238-245
Bermann, Jillian B. (2000). Defining the essence of business. An analysis of the title VII’s privacy BFCQS after Johnsons Controls. The University of Chicago Law Review, 67(3), pp.749-755
Derry, R. (2012). Reclaiming marginalized stakeholders. Journal of Business Ethics, 111(2), pp.253-264
Shaman, J. (1971). Toward defining and abolishing the bona fide occupational qualification based on class status. Labour Law Journal, 22(6), pp.332-341
