Recommendations Based on the foregoing legal examination and diversity analysis, the authors offer the following recommendations to managers and employers: Make sure to have objective, rational, verifiable, and particular-to-the- business reasons to justify any BFOQ. Focus on the necessity of using the BFOQ doctrine for the success of the business as opposed to mere preference and/or convenience. Show that the discriminatory means of an employment policy is sufficiently related to a legitimate business end. Demonstrate that all or substantially all of applicants and current employees do not possess the requisite characteristics for business success. Demonstrate that all or substantially all applicants and current employees cannot do the job safely and efficiently. Emphasize the rationales of safety, privacy, authenticity, and genuineness. Demonstrate that business operations would be undermined if the business could not utilize the BFOQ. Demonstrate that regarding assigning job responsibilities in a selective (that is, discriminatory) manner that it is not feasible to do so due to the nature of the business so as to satisfy privacy values and equal employment opportunities. Prove the need for the BFOQ by appropriate tests, expert witnesses, and scientifically accepted research and data. Do not base a BFOQ on any unproven assumptions, biases, and stereotypes about the ability of a person to perform a job. Do not base a BFOQ on the stereotypical notion that certain work is too strenuous or arduous for women and older workers.
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Do not exclude a person from a job based on gender-related, stereotypical assumptions about the roles of men and women. Utilize the privacy component of customer preference to justify a gender BFOQ, especially in a health care setting. Underscore the therapeutic nature of the position to justify a gender BFOQ in a health care setting. Utilize the expansive aforementioned Second Circuit four-factor test to justify a BFOQ based on national origin. For all BFOQs the employer must demonstrate that there is no reasonable alternative to discriminating based on the permissible protected categories. Work toward the creation of an inclusive workplace where all current and potential employees are welcomed and respected as unique human beings.