OAR 839-005-0013: Bona Fide Occupational Qualification (BFOQ) and Affirmative Action Plan Exceptions in Employment

(1) Discrimination is not unlawful if it is based on a bona fide occupational qualification (BFOQ), as provided in ORS 659A.030(1)(a). To prove a BFOQ, the employer must show that the BFOQ is reasonably necessary to the normal operation of the business. If so, the employer must then show: (a) A factual basis exists for believing that all or substantially all individuals in the protected class adversely affected by the BFOQ would be unable to perform safely and efficiently the tasks required in the job; or (b) It is impossible or highly impractical to screen applicants on an individual basis. (2) An employer may not claim a BFOQ for such reasons as: (a) Customer, co-worker or employer preference; (b) Stereotypes or assumed characteristics of a protected class. (3) When discrimination is based on a bona fide voluntary affirmative action plan, it is not unlawful if the plan: (a) Is a temporary measure; (b) Has the purpose of eliminating the effects of past discrimination; and (c) Does not unnecessarily trammel the interests of other protected classes.