Re: BFOQ and race

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On 2/20/07, RCW wrote:
>
> I would personally send it to the HR rep. Keep in mind that
> what you really want is no response which would be comprimised
> if you sent it to a member of upper management. You should note
> that in some rare employment settings an employer may be able to
> lawfully discriminate against applicants due to what we call
> BFOQs bonified occupational qaulifications. An example is
> considering only black male actors to play the role of Malcom
> X. Non blacks, females, applicants of certain ages will
> generally be exluded from consideration....

curiously, title vii doesn't provide a bfoq for race (it does offer
a bfoq for sex, religion, and national origin). thus, you violate
federal law by considering only black actors to play the role of
Malcolm X. (see SEC. 2000e-2(3) and SEC. 2000e-3(b) at
http://www.eeoc.gov/policy/vii.html online).

title vii forbids advertising a Malcolm X role as "for blacks
only," but it would permit advertising it as a role "for people who
share the physical charcteristics of Malcolm X." in other words,
it's okay to restrict consideration to only people who look like
him (although not only to people colored like him).

a footnote in Ferrill v. Parker Group (11th Cir. 1999) no. 97-7013
talking about the enactment of title vii says:

"In their interpretative memorandum, Senators Case and Clark
explained that "[a]lthough there is no exemption in Title VII for
occupations in which race might be deemed a bona fide job
qualification, a director of a play or movie who wished to cast an
actor in the role of a Negro, could specify that he wished to hire
someone with the physical appearance of a Negro."110 Cong. Rec.
7213, 7217 (1964) (emphasis added). See also Miller, 615 F.2d at
654 (suggesting that a director wishing to cast the role of Henry
VIII may announce that only applicants of sufficient physical
likeness to Henry VIII will be considered)."

despite the lack of title vii authority, the Seventh Circuit
adopted a narrow, judicially-crafted racial BFOQ in Wittmer v.
Peters, 87 F.3d 916 (7th Cir. 1996); also see Baker v. City of St.
Petersburg, 400 F.2d 294 (5th Cir. 1968).

but, generally, no bfoq for race or color.

good luck.