BONA FIDE OCCUPATIONAL QUALIFICATIONS
§ 41.71. Bona fide occupational qualification definition.
(a) It is anticipated that section 5 of the Pennsylvania Human Relations Act (43 P. S. § 955) which allows employment practices otherwise prohibited if based upon a bona fide occupational qualification will have limited scope and application.
(b) Discrimination in employment based upon race, color, religious creed, ancestry, age, sex or national origin is valid as a bona fide occupational qualification only when it is reasonably necessary to the essence of the normal operation of a particular business or enterprise.
(c) A bona fide occupational qualification allowing discrimination in employment is permissible only when the employer can prove a factual basis for believing that all or substantially all members of a class covered by the act would be unable to perform safely and efficiently the duties of the job involved. Absent such a showing, an applicant for a job in issue may be excluded only upon a demonstration of individual incapacity.
(d) The employer, employment agency or union has the burden of establishing that race, color, religious creed, ancestry, age, sex or national origin qualifies as a bona fide occupational qualification.
(e) The application of the exception is not warranted if based upon reasons such as, but not limited to:
(1) Assumptions of the comparative general employment characteristics of persons of a particular race, color, religious creed, ancestry, age, sex or national origin, such as their turnover rate.
(2) Stereotyped characteristics of the aforementioned classes, such as their mechanical ability or aggressiveness.
(3) Customer, client, co-worker or employer preference, or historical usage, tradition or custom.
(4) The necessity of providing separate facilities of a personal nature, such as restrooms or dressing rooms.
(f) An employer may exclude persons from positions on the basis of sex only when the sexual characteristics of the employe are crucial to the successful performance of the job.
Source The provisions of this § 41.71 adopted January 25, 1966; amended August 24, 1970, effective June 12, 1971, 1 Pa.B. 1361; amended July 12, 1974, effective July 13, 1974, 4 Pa.B. 1406. Immediately preceding text appears at serial page (2174).
Cross References This section cited in 16 Pa. Code § 51.52 (relating to securing supplementary interpretations); and 22 Pa. Code § 32.3 (relating to assurances).
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