Race, gender, customer preferences and BFOQs

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In Pleener v. NYC Board of Education, ___F.3d___ (2d Cir. Feb. 24, 2009), the Second Circuit affirmed that   an employer may never make an employment decision based upon the preferences of clients or customers, because race is never a BFOQ (Bona Fide Occupational Qualification). In holding that the plaintiff, a school principal, failed to establish that she was removed from his position because of the alleged race based preferences of the community, the court explained:

We agree that federal law does not permit an employer to discriminate based on race to accommodate the actual or perceived invidious biases of its clientele. See Knight v. Nassau County Civil Serv. Comm’n, 649 F.2d 157, 162 (2d Cir. 1981) (noting that”Congress specifically excluded race from the list of permissible bona fide occupational qualifications”); 29 C.F.R. § 1604.2(a)(1)(iii) (providing that bona fide   occupational qualification exception does not generally apply to”refusal to hire an individual   because of the preferences of coworkers, the employer, clients or customers”).

The lower court’s opinion explains the complicated factual background of the case. Spotted it via Adjunct Law Prof blog, which mistakenly characterizes the plaintiff as a “he.” Gender can’t be a BFOQ based on customer preference either (but see this article), but can be for “privacy” reasons, see e.g. this article.

–Ann Bartow

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