Articles

Bona fide occupational qualification (BFOQ)

1. Concept

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide occupational qualification (BFOQ). (Yrasuegi v. Philippine Airlines, Inc., G.R. No. 168081, 17 October 2008)

a. Legal basis

[T]he Constitution, the Labor Code, and RA No. 727761 or the Magna Carta for Disabled Persons contain provisions similar to BFOQ. (Ibid.)

b. Not a statutory defense

[T]here is no merit to the argument that BFOQ cannot be applied if it has no supporting statute. (Ibid.)

2. Tests

a. Meiorin Test

[I]n British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia Government and Service Employee’s Union (BCGSEU), the Supreme Court of Canada adopted the so-called “Meiorin Test” in determining whether an employment policy is justified. Under this test:

1) The employer must show that it adopted the standard for a purpose rationally connected to the performance of the job;

2) The employer must establish that the standard is reasonably necessary to the accomplishment of that work-related purpose; and

3) The employer must establish that the standard is reasonably necessary in order to accomplish the legitimate work-related purpose. (Ibid.)

b. Reasonableness Test

[I]n Star Paper Corporation v. Simbol, this Court held that in order to justify a BFOQ, the employer must prove that:

1) The employment qualification is reasonably related to the essential operation of the job involved; and

2) That there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. (Ibid.)

In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ. BFOQ is valid “provided it reflects an inherent quality reasonably necessary for satisfactory job performance.” (Ibid.)

3. Anti-Age Discrimination

By express provision of law, the Anti-Age Discrimination Employment Act specifically states that “[i]t shall not be unlawful for an employer to set age limitations in employment if… Age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age.” (Section 6[a], R.A. 10911, Anti-Age Discrimination Employment Act)

C. Case Law

a. Weight requirement for stewardess

CASE LAW

Yrasuegi v. Philippine Airlines, Inc.

G.R. No. 168081, 17 October 2008

[BACKGROUND: A flight stewardess was dismissed after failing to comply with the employer-airline’s policy on weight restrictions.]

[RESOLUTION]

Too, the Labor Arbiter, NLRC, and CA are one in holding that the weight standards of [the Company] are reasonable. A common carrier, from the nature of its business and for reasons of public policy, is bound to observe extraordinary diligence for the safety of the passengers it transports. It is bound to carry its passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances.

The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only logical to hold that the weight standards of [the Company] show its effort to comply with the exacting obligations imposed upon it by law by virtue of being a common carrier.

The business of [the Company] is air transportation. As such, it has committed itself to safely transport its passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the cabin flight deck crew who are on board the aircraft. The weight standards of [the Company] should be viewed as imposing strict norms of discipline upon its employees.

In other words, the primary objective of [the Company] in the imposition of the weight standards for cabin crew is flight safety. It cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on their ability to care for the passengers when something goes wrong. It is not farfetched to say that airline companies, just like all common carriers, thrive due to public confidence on their safety records. People, especially the riding public, expect no less than that airline companies transport their passengers to their respective destinations safely and soundly. A lesser performance is unacceptable.

The task of a cabin crew or flight attendant is not limited to serving meals or attending to the whims and caprices of the passengers. The most important activity of the cabin crew is to care for the safety of passengers and the evacuation of the aircraft when an emergency occurs. Passenger safety goes to the core of the job of a cabin attendant. Truly, airlines need cabin attendants who have the necessary strength to open emergency doors, the agility to attend to passengers in cramped working conditions, and the stamina to withstand grueling flight schedules.

On board an aircraft, the body weight and size of a cabin attendant are important factors to consider in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors. Thus, the arguments of respondent that “[w]hether the airline’s flight attendants are overweight or not has no direct relation to its mission of transporting passengers to their destination”; and that the weight standards “has nothing to do with airworthiness of respondent’s airlines,” must fail.

The rationale in Western Air Lines v. Criswell relied upon by [the Complainant] cannot apply to his case. What was involved there were two (2) airline pilots who were denied reassignment as flight engineers upon reaching the age of 60, and a flight engineer who was forced to retire at age 60. They sued the airline company, alleging that the age-60 retirement for flight engineers violated the Age Discrimination in Employment Act of 1967. Age-based BFOQ and being overweight are not the same. The case of overweight cabin attendants is another matter. Given the cramped cabin space and narrow aisles and emergency exit doors of the airplane, any overweight cabin attendant would certainly have difficulty navigating the cramped cabin area.

In short, there is no need to individually evaluate their ability to perform their task. That an obese cabin attendant occupies more space than a slim one is an unquestionable fact which courts can judicially recognize without introduction of evidence.  It would also be absurd to require airline companies to reconfigure the aircraft in order to widen the aisles and exit doors just to accommodate overweight cabin attendants like [the Complainant].

The biggest problem with an overweight cabin attendant is the possibility of impeding passengers from evacuating the aircraft, should the occasion call for it. The job of a cabin attendant during emergencies is to speedily get the passengers out of the aircraft safely. Being overweight necessarily impedes mobility. Indeed, in an emergency situation, seconds are what cabin attendants are dealing with, not minutes. Three lost seconds can translate into three lost lives. Evacuation might slow down just because a wide-bodied cabin attendant is blocking the narrow aisles. These possibilities are not remote.

b. Marriage restriction

In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc., the Court did not hesitate to pass upon the validity of a company policy which prohibits its employees from marrying employees of a rival company. It was held that the company policy is reasonable considering that its purpose is the protection of the interests of the company against possible competitor infiltration on its trade secrets and procedures. (Ibid.)

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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