It is unlawful to hire or discriminate against employees based on their gender, age, religion, or origin. However, an exception to this rule would be when any of those factors are considered bona fide occupational qualifications.
Bona fide occupational qualification is when an employer is allowed to hire employees based on qualities or attributes that would be discrimination when considered in other contexts. An employer must prove that the bona fide occupational qualification is reasonably necessary to the operation of the business to avoid liability for potential discrimination. These practices are not illegal if they are necessary.
Some industries or organizations are more prone to using bona fide occupational qualifications without liability. These industries include the fashion industry, any religious organization, and the entertainment industry.
Religious organizations or religious schools are allowed to hire only people that pertain to that religion, although it may not be a bona fide occupational qualification. For example, a Catholic school may choose to only hire Catholic school teachers even though the subjects that they are teaching might not need a Catholic background.
Another example would be the fashion industry. A women's clothing designer may hire only female models because the necessity is only for women. The same goes for men's clothing, the designer has the right to hire only men because that is what is required of the business.
The fashion industry may also go a step further and hire women with certain attributes. If they only hire women who are 5'7 and 120 pounds because that is who is going to fit into the clothing, then it is not considered discrimination. However, there would be liability for discrimination if they omit any women simply based on their race or religion.
In the entertainment industry liability for potential discrimination is minimal as there are specific requirements for roles or jobs. A casting director might be specific to hire a certain age, race, and gender. If the role calls for an African American woman in her sixties then it is absurd to think that this is discrimination of any sort because he will not interview a white male in his twenties. This is not discrimination in any way; these characteristics or qualities are essential for what that particular business might need.
An employer must be able to show that the bona fide occupational qualifications are a necessity to the business, and that the discriminatory criteria is related to the job and the operation of the business.
Liability for discrimination would exist if the bona fide occupational qualities did not coincide with the business needs at all. A clothing apparel manager cannot discriminate against someone based on their gender, age, religion, or origin; this would be unlawful. They may not say that young attractive personnel will bring in more customers, and therefore, they will not hire anyone that is considered unattractive or old. This would be grounds for discrimination.
Some businesses are on the fence about this, though. For example, the chain style restaurant Hooters employs males as cooks, busboys, and managers but they only employ females for the wait staff. They argue that the overall "essence of the business would be undermined if the business eliminated their discriminatory policy." The premise for the business is female sex appeal and the requirements for the job include wearing a Hooters girl uniform. Since it is partially necessary for the business to have a female wait staff and it is their policy, this might not be discrimination.
If an employer is going to hire based on bona fide occupational qualifications, it is best to be sure that it really is necessary to the operation of the business.