Question

When may you use practices that are facially discriminatory, but necessary to business? How should you handle subjective criteria?

Answer 1

When a business reflects that it has protected class characteristics, then the business can go for the facial discrimination in the recruitment decision. For example, a business that has a religious orientation such as producing, preaching  and selling religious material, then the business will hire people from a specific religion. It looks like a facial discrimination that people from other religion are not given the job opportunity, but religion is kept under the protected class. So, business can do justify it.

The business should go for the Bona Fide occupational Qualification (BFOQ). The employer has to establish that BFOQ consideration is applied in his case. If he is able to do it, then his practice is legal. For example, if he establishes that religion oriented business has work that can only be done by the people from specific religion, then his hiring practices are legal in nature.