Workplace Rights

Weekly (12/20/10)

Topic of the Week  Too Discriminating: When It Is Legal To Discriminate



-National Origin.


We all know that discrimination is illegal in hiring, firing and with paychecks. Just to name a few examples. However, as counter intuitive as it may sound, there are still many places where discrimination isn't only legal, it's embraced. Which reminds me of a song by legendary folksinger, and ex-math professor, Tom Lehrer. He sang about how the military took our national creed of avoiding discrimination to the logical extreme: not discriminating on the basis of race, color, creed or ability.

Lehrer was joking about expertise, but it is one place where it still remains perfectly legal to discriminate. A hiring manager, or HR, can decide that an employee needs to know how to use specific computer programs or that they have specific educational or work experiences to be able to do the job. The challenge is to avoid discriminating where it remains illegal: like race, creed and color. I've listed four common areas where discrimination is legal, below. For more of the ins and outs of discrimination at work, check out Fred Stiengold's book "Employers Legal Handbook" (Nolo, 2009).

BFOQ. No, it's not a country rock band from the late '70's, or a plea from someone hosting a party for you to bring alcohol. BFOQ stands for "bona fide occupational qualification" or specific skill. Let me give a simple example, I would never apply for a job as a singer because I can't carry a tune. That's a simple BFOQ for a band seeking to hire a lead singer, the ability to be easy on the ears. Just think how many bad songs you never needed to hear me sing because of BFOQs.

Religion. It's also reasonable to ask that people who work for a religious order be members of that particular faith. Preachers, Sunday school teachers and people who do outreach ministry all can reasonably be expected to be members of the flock.

National Origin. This is a narrow one. Just as in the case of a religious order, it makes sense for a Native American to work in an outreach program addressing issues facing Native Americans or a Woman to work in a counseling center focused on sexual assaults against women. But Steingold points out that this situation has been exploited in the past, so courts need a compelling reason to support a claim here.

Gender. No one would argue that it's not reasonable for a rest room attendant in a restaurant to be the same sex as the people who'll be using the bathroom they're working in. However, recently there were headlines over a similar issue, when a football player complained about a female reporter in the locker room. Okay, the headline felt like it should be from the last century, but that just shows how nuanced the differences can be between legal and illegal discrimination.

Lehrer also sang in that song about his Army cook who got his taste buds shot off on the war. Follow these tips and hopefully you'll never be in the line of fire over a discrimination lawsuit.

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning Check the revised edition of his Wall Street Journal best seller, "The Boss's Survival Guide." If you have a question for Bob, contact him via

Thought of the Week

"The five essential entrepreneurial skills for success: concentration, discrimination, organizations, innovation and communication."

–Harold S. Geneen

Blog of the Week

Top Five News Headlines

    List of the Week

    from This is really sick…How workers feel about being sick at work

    Nearly half of Americans (44 percent) would consider going to work with a fever.
    More than a third of Americans (32 percent) said they would show up to work no matter how sick they get this season.
    Nearly half of Americans (46 percent) said they did not take a sick day last cold & flu season (October 2009 - March 2010).
    More than 10 percent of Americans thought they would not likely receive their next pay raise or promotion, or worse, would lose their job for calling out sick


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