11.7 Age Discrimination—Defenses—Bona Fide Occupational Qualification (Comment only)

Comment 

            Under 29 U.S.C. § 623(f)(1) an employer may take action that would otherwise be prohibited where "age is a bona fide occupational qualification [(‘BFOQ’)] reasonably necessary to the normal operation of the particular business." The BFOQ defense is also available in Title VII cases, and the same standard applies. See W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-17 (1985) (interpreting ADEA’s BFOQ exception in light of Title VII’s BFOQ exception); see also Smith v. City of Jackson, 544 U.S. 228, 234 (2005) (noting that certain "language in the ADEA . . . was derived in haec verba from Title VII" (internal quotation omitted)). Thus, when a BFOQ defense is at issue, the court should give the parallel Title VII instruction (Instruction 10.14) with appropriate modification. See also Comment to Instruction 10.14 (Civil Rights—Title VII—Defense—Bona Fide Occupational Qualification).