Bona Fide Occupational Qualification (BFOQ) is a situation that is rare, this situation is where a persons gender, religion, or national origin would be a reason to disqualify for a job

Though it seems to be clear, there can be difficulties that would arise for a number of reasons. An example would be a cross-gender correctional officer that would be a difficulty to determine which gender of prisoners would be appropriate for this guard to be posted (Monahan, C., 2013). This example is not an extreme case, though it does depend on the type of correctional facility this person would be sent to begin duties. Minimum security would be acceptable for either gender to be posted at the inmate section. Maximum security would be a different story all together.

BFOQ can be confused on where it applies and when disparate impact occurs. Disparate impact is an unintentional discrimination, disparate treatment is intentional. An example of disparate impact is where an employer deliberately chooses certain genders or individuals that would be able to perform job duties that consistently lifts heavy materials. An example of disparate treatment is where a person of protected status is treated differently based on gender, religion, or national origin.

BFOQ has shown that there are situations that people of protected status can be denied a job position based on the job duties. American disabilities act (1990) (ADA) is an act that prohibits businesses from discriminating against people that are disabled from being excluded based on the disability. If a person is able to perform the functions of the job, they must be considered for the position. For an employer to claim BFOQ, there must be unequivocal proof that the disability is a reason why the job duties cannot be performed.

U.S. Equal Employment Opportunity Commission (2022). EEOC Informal Discussion

https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-44

Hunt, S.T. (2014). Common sense talent management: Using strategic human resources to improve company performance (Links to an external site.).  Retrieved from Ebook Central.

Monahan, C. (2013). The Failure of the Bona Fide Occupational Qualification in Cross‐Gender Prison Guard Cases: A Problem beyond Equal Employment Opportunity. Hypatia, 28(1), 101-121. doi:10.1111/j.1527-2001.2011.01248.x

SCHACHTER, H. L. (2013). Constructing Age through Bona Fide Occupational Qualifications: De Jure Discrimination’s Last Stand? Public Administration Quarterly, 37(3), 373–392.

Dis 1 Part 2

There are many laws that HRM must abide by. One such law is Title VII of the Civil Rights Act of 1964, which “prohibits employment discrimination on the basis of race, sex, color, age, and national origin” (Aamodt, 2017). An exception is made to this in Section 703(e) of Title VII. “This section states that it is not unlawful for an employer to differentiate hiring on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise” (Seaquist, 2012). One example of a BFOQ would be a Catholic school that only hires Catholic teachers. By not clearly defining BFOQs, an organization could face claims of discrimination. For example, if a Catholic church that only hires Catholic teachers does not clearly define its BFOQ, the organization could face discrimination claims when asking potential candidates questions that involve their religion (or religious beliefs). If an organization has a BFOQ, however, the BFOQ is not well defined, the organization would be practicing disparate treatment. Disparate treatment is intentional discrimination against one of the protected classes. If the Catholic school does not have a well-defined BFOQ and does not hire a qualified candidate because he/she is not Catholic, then it is disparate treatment. “Disparate impact occurs when the organization’s policies, practices, or procedures appear to be neutral but result in a disproportionate impact to the candidate or employee” (Henderson, n.d.). In this case, the policies do not cause discrimination;
however, once implemented, discrimination occurs. Both disparate treatment and disparate impact are illegal. If an organization has a well-defined BFOQ, then it has a legal exemption for discriminating against a protected class due to the reasonable necessity of normal business
operations.

The ADA of 1990 protects Americans with disabilities. In order to remain compliant with the ADA, organizations must offer reasonable accommodations for individuals with disabilities who can carry out (or perform) the duties of the position in question. It protects individuals with disabilities by ensuring that organizations do not discriminate against the individual or his/her disability. In this case, as well as with BFOQ, the organization must be able to justify its employment decisions based on the demands and necessities of normal business operations and not on other factors (like disability, age, religion, and gender).

References:

Aamodt, M. G. (2017). Really, I come here for the food: Sex as a bfoq for restaurant servers. TIP: The Industrial-Organizational Psychologist, 54(3), 99–108. Retrieved from http://search.ebscohost.com.proxy-library.ashford.edu/login.aspx?Links to an external site. direct=true&db=a9h&AN=121097465&site=eds-live&scope=site

Henderson, B. (n.d.). Weekly lecture [Instructor guidance]. Retrieved from https://ashford.instructure.com/courses/53699/pages/week-6-weekly-lecture? module_item_id=2715097

Seaquist, G. (2012). Business law for managers [Electronic version]. Bridgepoint Education, Inc. Retrieved from https://content.ashford.edu/books/AUBUS670.12.2/sections/fm

Dis 2 Part 1

There are differences on what is considered a lawful termination depending on the country. In fact, many MNCs utilize an employment contract that will help mitigate legal entanglements, but that too isn’t universal worldwide.

“In an era of globalization where multinationals draw on labor and capital resources across national borders, labor relations and employment practices are still fundamentally bounded by domestic legal regimes.” (Harper Ho, 2009)

China has recently extended their statute of limitations on filing a claim of false termination or unlawful termination from 60 days to one year, whereas Germany has only 3 weeks. “The statute of limitations is an important factor. If the dismissal is not challenged within three weeks as of the day notice was given, the dismissal is deemed to be valid” (Hund, 2014).

Using an employment contract is used as not only an incentive to keep employees long term but is also utilized to outline exactly what is considered for a lawful termination by the employer, unfortunately it isn’t uncommon for the employer to “redact or hide” key elements in a contract that if disclosed, potential employees wouldn’t sign. This is a huge legal challenge within any MNC.

Mitigating what is considered a legal termination, varies from country to country. The challenge to HRM is knowing exactly what they are and ensuring that all correct, legal resources and management are on point for each location.

Works Cited

Gould IV, W. B. (2010). Labor Law Beyond U.S. Borders: Does What Happens Outside of America Stay Outside of America? Stanford Law and Article Review, 401-426.

Harper Ho, V. E. (2009). From Contracts to Compliance? An early look at implemetnation under China's new labor legislation. Columbia Journal of Asian Law, 36-107.

Hund, D. (2014). German Unjust Dismissal Law in Practice. Employee Relations Law Journal, 61-84.

Kuddo, A. (2009). Labor Laws in Eastern European and Central Asian Countries Minimum Norms and Practices. Vilnius: World Bank Organization.

Dis 2 Part 2

The different requirements for termination of employment in European countries can create challenges for employers, who must be aware of the requirements of each country in which they operate. In some cases, such as in France, an employer may need a valid reason for terminating an employee, which can be challenging to prove. In other cases, such as in Germany, an employer may only be able to terminate an employee for cause and must be able to provide evidence of the reason. These requirements can make it difficult for employers to remove employees and lead to lawsuits from employees who believe they were wrongfully terminated.
The risks associated with the termination of employment in European countries can be significant. If an employee is wrongfully terminated, they may file a lawsuit against the employer. Additionally, if an employee is terminated unfairly, it can lead to negative publicity for the company. These risks can be costly for employers in terms of financial damages and reputation.
MNCs operating in European countries with restrictions on termination of employment must have a clear and consistent policy on termination. All employees must be made aware of the policy and understand the consequences of violating it. Additionally, MNCs must comply with all local laws and regulations. Failure to do so can result in significant penalties.
HRM policies may be necessary to comply with restrictions on termination of employment in European countries. For example, a progressive discipline policy may need to be implemented to avoid wrongful termination lawsuits. This type of policy would require that an employee be given warnings or counseling before being terminated to provide them with a chance to improve their performance.
Other conditions or restrictions facing a firm operating in such environments include the need to comply with local laws and regulations. Additionally, the possibility of unionization must be considered. Unionization can make it more difficult for an employer to terminate employees, as negotiation may be required to reach a severance agreement.