ABA Family Legal Guide

Law and the Workplace

The Hiring Process

Is it ever appropriate to indicate a preference for applicants of a specific sex or age?

Rarely. Antidiscrimination laws require employers to consider applicants as individuals and not make decisions based on stereotypical assumptions. If a factory job requires a worker regularly to lift forty pounds, an employer cannot express a preference for young male applicants based on the stereotyped notion that men are strong and older people and women are weak. Some women and older people can lift forty pounds, just as some young men cannot. Rather, the employer's job ad should state that the job requires "regularly lifting forty pounds."

In some rare circumstances, however, it is an objective fact that people who are members of a protected class cannot perform the job in question. For example, a filmmaker may hire only men for male roles, or a kosher deli may hire only Jewish people as butchers. In both of these examples, sex and religion are bona fide occupational qualifications (BFOQ). Both Title VII and the ADEA allow employers to limit a job to applicants of a specific group when the employer can prove that sex, religion, national origin, or age is a BFOQ for the job in question. Race, color, and disability, however, can never qualify as a BFOQ.