b'When are BFOQs appropriate: Sometimes it is appropriate toCriminal background checks all around: If your job description intentionallydiscriminateagainstaprotectedclassinhiringsays no criminal history, it better be needed.In 2012, Pepsi an employee.If you are hiring a new priest or pastor for yourdiscovered that requiring no criminal history or even arrests for church, it is probably good that they have the right religion. If youall positions can be considered discriminatory.According to the are hiring an attendant for the womens restroom in your gym, itEqual Employment Opportunity Commission (EEOC), who took probably is best not to hire a man. That said, it is not appropriatePepsi for a $3.1 million settlement, not all jobs require a spotless to hire all men because you are a mens clothing company. Thiscriminal history.I dont necessarily agree with this position, but it is a dangerous area. Courts are very particular about what ismakes a point.If you make a job description that unnecessarily allowed under this exception. You should probably consult withhas an adverse effect on a particular protected class, even if it a lawyer before characterizing a protected characteristic as aisnt facially discriminatory, you could find yourself in a bad spot. BFOQ. (See the section on Discriminatory Use of Background Checks Common Situations: for more information.)Job description after the fact:Often, employers get caught withWhat Should I Do:a DOL audit and try to write job descriptions to justify exemptionsGood:Preparejobdescriptionsforallexemptemployee after the fact.The DOL is wise to this idea and gives the after- positions and positions that require strenuous or specialized thought job descriptions little weight.The same issue arisesphysical activity to protect against overtime claims and violations with job descriptions written after a discrimination claim is made. of the ADA.Remember to be careful with job descriptions in a The description often is used by the claimant to their advantageunion environment; there may be additional requirements under to make it look like the employer is trying to cover up to avoidthe collective bargaining agreement you should consider. liability.Better: Prepare job descriptions for all positions and use them Some jobs just require a guy:BFOQs are dangerous, but havingas the basis for your interviews of prospective employees and as a requirement that you hire all men for your female-orienteda checklist for performance evaluations of existing employees.shirtless hunk restaurant without writing down the requirementBe careful not to use sexist terms in your job descriptions, such and explaining it in advance is a recipe for being sued.In aas salesman or waitress.reverse circumstance, a little company called Hooters got sued because it wouldnt hire any men for its wait staff.If you areBest:In addition to the items above, get employee buy-in for going to have a BFOQ, put it in writing in advance and includejob descriptions.Have the employees presently in the position an explanation that a jury would believe because that is whoagree with the job description and what is included such that will ultimately evaluate it.If a jury wouldnt buy it, you probablyyou could show the DOL that the employee agreed to what is shouldnt be doing it. required.12'