[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1604.2]

[Page 194-195]
 
                             TITLE 29--LABOR
 
          CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
PART 1604_GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--Table of Contents
 
Sec.  1604.2  Sex as a bona fide occupational qualification.

    (a) The commission believes that the bona fide occupational 
qualification exception as to sex should be interpreted narrowly. 
Label--``Men's jobs'' and ``Women's jobs''--tend to deny employment 
opportunities unnecessarily to one sex or the other.
    (1) The Commission will find that the following situations do not 
warrant the application of the bona fide occupational qualification 
exception:
    (i) The refusal to hire a woman because of her sex based on 
assumptions of the comparative employment characteristics of women in 
general. For example, the assumption that the turnover rate among women 
is higher than among men.
    (ii) The refusal to hire an individual based on stereotyped 
characterizations of the sexes. Such stereotypes include, for example, 
that men are less capable of assembling intricate equipment: that women 
are less capable of aggressive salesmanship. The principle of 
nondiscrimination requires that individuals be considered on the basis 
of individual capacities and not on the basis of any characteristics 
generally attributed to the group.
    (iii) The refusal to hire an individual because of the preferences 
of coworkers, the employer, clients or customers except as covered 
specifically in paragraph (a)(2) of this section.

[[Page 195]]

    (2) Where it is necessary for the purpose of authenticity or 
genuineness, the Commission will consider sex to be a bona fide 
occupational qualification, e.g., an actor or actress.
    (b) Effect of sex-oriented State employment legislation.
    (1) Many States have enacted laws or promulgated administrative 
regulations with respect to the employment of females. Among these laws 
are those which prohibit or limit the employment of females, e.g., the 
employment of females in certain occupations, in jobs requiring the 
lifting or carrying of weights exceeding certain prescribed limits, 
during certain hours of the night, for more than a specified number of 
hours per day or per week, and for certain periods of time before and 
after childbirth. The Commission has found that such laws and 
regulations do not take into account the capacities, preferences, and 
abilities of individual females and, therefore, discriminate on the 
basis of sex. The Commission has concluded that such laws and 
regulations conflict with and are superseded by title VII of the Civil 
Rights Act of 1964. Accordingly, such laws will not be considered a 
defense to an otherwise established unlawful employment practice or as a 
basis for the application of the bona fide occupational qualification 
exception.
    (2) The Commission has concluded that State laws and regulations 
which discriminate on the basis of sex with regard to the employment of 
minors are in conflict with and are superseded by title VII to the 
extent that such laws are more restrictive for one sex. Accordingly, 
restrictions on the employment of minors of one sex over and above those 
imposed on minors of the other sex will not be considered a defense to 
an otherwise established unlawful employment practice or as a basis for 
the application of the bona fide occupational qualification exception.
    (3) A number of States require that minimum wage and premium pay for 
overtime be provided for female employees. An employer will be deemed to 
have engaged in an unlawful employment practice if:
    (i) It refuses to hire or otherwise adversely affects the employment 
opportunities of female applicants or employees in order to avoid the 
payment of minimum wages or overtime pay required by State law; or
    (ii) It does not provide the same benefits for male employees.
    (4) As to other kinds of sex-oriented State employment laws, such as 
those requiring special rest and meal periods or physical facilities for 
women, provision of these benefits to one sex only will be a violation 
of title VII. An employer will be deemed to have engaged in an unlawful 
employment practice if:
    (i) It refuses to hire or otherwise adversely affects the employment 
opportunities of female applicants or employees in order to avoid the 
provision of such benefits; or
    (ii) It does not provide the same benefits for male employees. If 
the employer can prove that business necessity precludes providing these 
benefits to both men and women, then the State law is in conflict with 
and superseded by title VII as to this employer. In this situation, the 
employer shall not provide such benefits to members of either sex.
    (5) Some States require that separate restrooms be provided for 
employees of each sex. An employer will be deemed to have engaged in an 
unlawful employment practice if it refuses to hire or otherwise 
adversely affects the employment opportunities of applicants or 
employees in order to avoid the provision of such restrooms for persons 
of that sex.