Two rules from Title VII's section 2000e-2, both about who has to prove what.
The BFOQ covers three characteristics
42 U.S.C. 2000e-2(e)(1) permits action on the basis of religion, sex or national origin where that characteristic is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.
Race and color appear nowhere in the list. The sentence states the three-item list twice. Adding race is the most frequent error on this item; dropping religion is the other.
Because the defense is unavailable for race at the threshold, no business rationale rescues it. Hiring only members of one racial group because customers prefer it is unlawful even if the customer preference is documented in survey data, even if the role is customer-facing, and even if it is temporary. There is no BFOQ for race, and there is none for a statute that never had one — GINA included.
Disparate impact: the two-step burden
Under 2000e-2(k)(1)(A)(i), added by the Civil Rights Act of 1991:
- The complaining party demonstrates a particular employment practice causing a disparate impact on the basis of race, color, religion, sex or national origin.
- The respondent then must demonstrate the practice is job related for the position in question and consistent with business necessity.
What goes wrong on this item:
- Dropping the requirement to identify a particular practice and relying on an overall workforce statistical disparity.
- Importing intent, which belongs to disparate treatment, not impact.
- Reversing the order and putting an initial validation burden on the respondent.
What "demonstrates" means
2000e(m) defines demonstrates as meeting the burdens of production and persuasion. That is why the respondent's job-relatedness showing is a true burden, not a mere articulation of a legitimate reason. It is not production alone, and it is not a clear-and-convincing standard.
Carry this: religion, sex, national origin for BFOQ; plaintiff names the practice, employer then carries both burdens on job relatedness and business necessity.