In Knox v. John Varvatos Enterprises Inc., 17-CV-772, 2021 WL 95914 (S.D.N.Y. Jan. 12, 2021) – a gender discrimination class action lawsuit – the court, inter alia, held that the defendant was not permitted to invoke the “Bona Fide Occupational Requirement” (BFOQ) defense codified in Title VII of the Civil Rights Act of 1964.
In sum, plaintiffs sued, alleging that defendant’s clothing allowance policy, which included giving free clothing to male sales professionals but not female sales professionals, violated various federal and state anti-discrimination laws. A jury rendered a verdict in plaintiffs’ favor. The court denied all of defendant’s motions, except that it ordered a new trial (or remittitur) on the issues of compensatory damages.
The BFOQ defense is codified at 42 U.S.C. § 2000e-2(e), which provides in relevant part:
[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, … on the basis of his … sex … in those certain instances where … sex … is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
The court explained why this defense did not apply here:
Varvatos was not entitled to a jury instruction on this defense because there was no evidence from which it could argue that the defense applied. The defense applies only to the “hir[ing]” and “employ[ing]” of workers — not to their pay. As explained by the Ninth Circuit, “this exception does not apply to the full range of possibly discriminatory employment actions” because “[i]t uses only the words ‘to hire and employ,’ while the earlier section [§ 703(a) ] … includes a catchall phrase, ‘or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.’ ” E.E.O.C. v. Fremont Christian Sch., 781 F.2d 1362, 1366 (9th Cir. 1986) (third alteration in original) (quoting 1 L. Larson, Employment Discrimination § 13.00 (1985) at 4-1 to 4-2). The Ninth Circuit noted that it would be a “ ‘mistake[ ] to invoke the BFOQ exception in a case involving, say, discrimination in pay.’ ” Id. at 1367 (quoting 1 L. Larson, Employment Discrimination § 13.00 at 4-2).
Based on this, the court held that the BFOQ “defense could not have been found to apply here.”