ers reason for not hiring was pretext. Once pretext is proven, then the court would presume that the adverse action was illegal. In some instances, this may not be enough. The employee may still have to provide evidence of discrimination. Employers Position When an employer is accused of discrimination, he must state that there was a legitimate reason for that adverse employment action. The employer may chose from many defenses. One defense may be BFOQ. In using BFOQ as a defense, the employer must show reasonable necessity for his actions. BFOQs are limited in scope and the burden of proof falls heavily on the employer. Employers trying to establish a BFOQ based on the privacy rights of their customers, must first prove that the gender-based BFOQ is reasonably necessary to the normal operation of its business. The employer must also show he had a factual basis for believing that hiring members of that sex would undermine business operation. Also, the employer must show that the nature of their business allows no reasonable alternatives to their gender-based classifications that wouldnt interfere with customers privacy rights. A Job qualification can be gender-based only if an employer can prove that all or almost all members of the excluded gender cannot perform the job. If the employer has a job requirement that would eliminate a disproportionate number of one gender or the other, then under the disparate impact analysis, the employer could be ordered to discontinue the practice or accommodate the excluded gender. If an employer fails to establish a BFOQ, the consequences can be costly. Traditional remedies available in a Title VII action include hiring or reinstating the plaintiff, providing back pay, and granting retroactive seniority (Hawke, p. 59).CASES United States v. Virginia The United States challenged Virginia Military Institutes (VMI) male- only admissions policy. Under title VII, an emp...
