Under federal law, it could potentially be illegal to ask a potential job candidate about religious affiliation or beliefs. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, and national origin. In the context of a company’s hiring process, Title VII prohibits employers from discriminating in the hiring process based on race, color, religion, sex, and national origin.
This is how it could be problematic to ask questions based on religion at a job interview. However, employers who are accused of discrimination under Title VII for asking such questions have a viable defense. It is called the bona fide occupational qualification (BFOQ) defense. An employer can ask questions at an interview and even hire based on religion only if the religious quality is a bona fide occupational qualification (BFOQ)—a quality that when considered in other contexts would constitute discrimination in violation of civil rights employment law. Such qualifications must be listed in the employment offering.
So, the question becomes: When do religious qualities become a bona fide occupational qualification (BFOQ)? To be a BFOQ, the religious quality must be necessary to the success of the business and that a definable group or class of employees would be unable to perform the job safely and efficiently. When raising the BFOQ defense, an employer needs to demonstrate a necessity for a certain type of workers because all others do not have certain characteristics necessary for employment success. Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business.
Here are some examples of valid bona fide occupational qualifications:
- Age requirement for bus drivers and airline pilots, for safety reasons.
- Gender requirement in clothing advertising for male clothing for the purpose of authenticity or genuineness.
- Religious belief requirement (Catholic) for a teacher at a Catholic High School.
- Spanish speaking requirement for a receptionist position at a gym that has a substantial amount of Spanish speaking members.
- Lifting strength requirement at a Fire department to demonstrate that they will be able to carry fire victims out of a burning building.
It is important to note however, that just because an organization may have requirements, the quality sought after must be reasonably necessary for normal operation of the business. For example, for a position such as a janitor at a Catholic school, discrimination based on religion would be illegal because religion has no effect on the person’s ability to fulfill the duties of the job.
You should have an attorney help determine if a job requirement can legally be a BFOQ. Even if you are quite positive, you could open yourself up to a discrimination lawsuit if you’re not careful.