Section 12-46-102 - Bona fide occupational qualification (BFOQ)(a) The burden of proving that sex is a bona fide occupational qualification (BFOQ) rests upon the employer or other covered entity seeking the exception.(b) The BFOQ exception as to sex shall be strictly and narrowly construed. The commission believes that most jobs can be performed equally well by a male or a female, and that individual differences rather than sex differences are the determining factors.(c) An employer or other covered entity may make an inquiry of the commission as to whether sex is a BFOQ for a particular job. The commission shall give informal opinions in response to such inquiries.(d) The following situations do not constitute BFOQ exceptions to chapter 378, HRS: (1) The refusal to hire or promote a female because of her sex based on assumptions of the comparative employment characteristics of females in general, e.g., the assumption that the absence or turnover rate among females is higher than among males; or(2) The refusal to hire or promote an individual based on stereotyped characterizations of the sexes, e.g., that males are less capable of assembling intricate equipment; that females are less capable of being aggressive salespersons; or(3) The refusal to hire, refer, recommend, or consider for a position, or promote an individual because of preferences or sense of propriety of co-workers, the employer, client, or customer; or(4) The fact that the employer may have to provide separate facilities because of a person's sex will not justify discrimination under the BFOQ exception unless the expense would clearly be unreasonable.(e) The following situations are recognized as those in which a distinction based on sex may be a bona fide occupational qualification: (1) Where it is necessary for the purpose of authenticity or genuineness, e.g., an actor to play a male role or a female to model feminine apparel; or(2) Where public morals demand that one sex be given preference over the other in performing a particular function, e.g., a masseuse to work at a women's health club; a male to work as an attendant in a man's washroom; a female to work as a fitter of feminine apparel.(f) Employers or other covered entities shall assign job duties and make other reasonable accommodations so as to minimize the number of jobs for which sex is a BFOQ.[Eff 12/31/90] (Auth: HRS §§ 368-3, 378-8) (Imp: HRS §§ 368-3, 378-3, 378-8)