Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning bona fide occupational qualification? Here’s my point of view.
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WSHRC — EMPLOYMENT — BONA FIDE OCCUPATIONAL QUALIFICATION
In Washington State, discrimination in employment based on protected characteristics is prohibited under the Washington Law Against Discrimination. However, the Washington Administrative Code (WAC 162-16-240) recognizes a narrow exception to this rule: the bona fide occupational qualification (BFOQ).
A BFOQ allows an employer to consider a person’s protected status only when it is genuinely necessary to the job. This isn’t a loophole for bias—it’s a specific, limited carve-out. The Washington State Human Rights Commission emphasizes that BFOQs must be applied narrowly and thoughtfully.
THE BLACK LETTER LAW: WAC 162-16-240
The relevant provision is WAC 162-16-240*, and it states as follows:
WAC 162-16-240
Bona fide occupational qualification.
Under the law against discrimination, there is an exception to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of protected status; that is if a bona fide occupational qualification (BFOQ) applies. The commission believes that the BFOQ exception should be applied narrowly to jobs for which a particular quality of protected status will be essential to or will contribute to the accomplishment of the purposes of the job. The following examples illustrate how the commission applies BFOQs:
(1) Where it is necessary for the purpose of authenticity or genuineness (e.g., model, actor, actress) or maintaining conventional standards of sexual privacy (e.g., locker room attendant, intimate apparel fitter) the commission will consider protected status to be a BFOQ.
(2) A 911 emergency response service needs operators who are bilingual in English and Spanish. The job qualification should be spoken language competency, not national origin.
(3) An employer refuses to consider a person with a disability for a receptionist position on the basis that the person’s disability “would make customers and other coworkers uncomfortable.” This is not a valid BFOQ.
(4) A person with a disability applies for promotion to a position at a different site within the firm. The firm does not promote the person because doing so would compel the firm to install an assistive device on equipment at that site to enable the person to properly perform the job. This is not a valid BFOQ.
WAC 162-16-240* (emphasis and hyperlinks added).
What Qualifies as a BFOQ?
Thus, some key examples clarify when a BFOQ may or may not apply:
• Authenticity or Privacy: A protected status may be essential when authenticity matters—such as hiring an actor for a culturally specific role—or when maintaining privacy is necessary, like hiring locker room attendants or intimate apparel fitters.
• Skill Over Status: Requiring bilingual ability for a 911 operator position is acceptable. However, the requirement should be based on language skills, not the applicant’s ethnic background.
• Discomfort Isn’t a Defense: Employers cannot reject a person with a disability simply because coworkers or customers might feel “uncomfortable.” That’s not a valid BFOQ.
• Accommodation is Not Optional: Refusing to promote someone with a disability to avoid the cost of accommodations—like assistive equipment—also fails to meet the BFOQ standard.
CONCLUSION
The BFOQ rule exists to ensure that only in rare, well-justified cases can an employer factor in protected status. Washington law draws a clear line between legitimate job requirements and discriminatory practices disguised as necessity.
Employers should tread carefully—and consult legal guidance—before invoking a BFOQ. Misusing this exception can lead to serious legal consequences and undermine workplace equity.
RELATED ARTICLES
We invite you to read more of our articles related to this topic:
» WA State Human Rights Commission Complaints
» WA State Human Rights Commission: Functions, Powers, and Duties
» WSHRC: From Complaint to Conclusion
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