Vanderbilt Law Review


Jane W. May

First Page



The Age Discrimination in Employment Act (ADEA) prohibits employment decisions that discriminate against people aged forty to seventy because of their age. An exception to the ADEA permits otherwise unlawful age discrimination when age is a "bonafide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business.'' To invoke this exception successfully, an employer must produce evidence from which a court can conclude that age is a valid BFOQ. Currently,some confusion exists as to whether an employer's evidence must establish that age is relevant to the performance of the employee's specific duties or whether this evidence need relate only to the general business of which the employee is a part.' The resolution of this issue will determine the scope of the BFOQ exception.

In addressing this issue three circuit courts" have each proposed a different analysis. In EEOC v. City of Janesville' the United States Court of Appeals for the Seventh Circuit adopted an expansive view of the exception, requiring evidence of age as a BFOQ to relate to the generic class of law enforcement personnel rather than to the employee's specific duties as chief of police. Two years later, in EEOC v. City of St. Paul the United States Court of Appeals for the Eighth Circuit reached a contrary result, requiring an employer to establish a BFOQ for the employee's specific occupation as district fire chief rather than a BFOQ relating to the generic class of firefighters as a whole. In 1984, in Mahoney v.Trabucco' the United States Court of Appeals for the First Circuit considered both the Seventh and Eighth Circuits' approaches and adopted an intermediate position. The First Circuit agreed with the Eighth Circuit that an "occupational qualification" can be separate from a "particular business" under narrow conditions,thus requiring evidence of a BFOQ to relate to the employee's specific occupation."- The First Circuit, however, narrowly defined those cases concerning separate occupations and finding no separate occupation in this particular case, accepted evidence of age as a BFOQ for the generic class of protective service employees.

The purpose of this Recent Development is to determine which approach best effectuates the purpose of the BFOQ exception. Part II examines the history of the ADEA and the judicial application of the BFOQ exception. Part III discusses the three recent cases and their proposed tests for applying the BFOQ exception. Part IV analyzes these tests in light of other judicial precedent, the wording of the BFOQ exception, and the ADEA's legislative history. Part V concludes that the proper BFOQ test should focus on the requirements of the employee's specific job rather than the generic class of employees of which the employee is a part.