N.J. Admin. Code § 13:11-1.4

Current through Register Vol. 56, No. 8, April 15, 2024

Section 13:11-1.4 - Bona fide occupational qualification exception; application

(a) For the purposes of this chapter, the "bona fide occupational qualification" (BFOQ) exception shall include only those vocational qualifications that are reasonably necessary to the normal operation of the particular business, enterprise, or apprentice or other training program.

(b) The exception shall be interpreted so that individuals will be considered for employment on the basis of their individual capacities and not on the basis of any characteristics generally attributable to their group.

(c) The employer, employment agency, or union has the burden of establishing that race, creed, color, national origin, ancestry, nationality, age, marital status, civil union status, affectional or sexual orientation, gender identity or expression, domestic partnership status, disability, liability for service in the Armed Forces of the United States, or sex is a bona fide occupational qualification.

(d)The application of the exception is not warranted where based on, for example:

1. Assumptions of the comparative general employment characteristics of persons of a particular race, creed, color, national origin, ancestry, nationality, age, sex, affectional or sexual orientation, gender identity or expression, civil union status, domestic partnership status, disability, liability for service in the Armed Forces of the United States, or marital status, 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; or

4. The necessity of providing separate facilities of a personal nature, such as rest rooms or dressing rooms.

(e) In regard to sex, the application of the exception may be warranted where it is necessary for authenticity or genuineness, such as for an actor or actress, or where the job in question necessarily involves intimate personal contact with persons of the opposite sex, and the employer demonstrates that such contact is an essential function of the job and a central purpose of the employers enterprise, that clients, patients, or others served would not consent to service by members of the opposite sex, that the legitimate privacy interests of clients, patients, or others served by the employee outweigh the public interest in equal employment opportunity, and that no reasonable alternatives to a gender-based BFOQ are feasible.

N.J. Admin. Code § 13:11-1.4

Amended by 46 N.J.R. 1697(b), effective 7/21/2014.