Kosher wine and antidiscrimination law

[Raquelle DE LA ROCHA]

This is by no means an easy call.  But taking into account the range of BFOQ caselaw, the BFOQ exception should be narrowly applied to the particular jobs which require jews (or non-jews) in the production of wine or kosher meat, because the essence of the business- - processing kosher food - - cannot be accomplished without employees who are qualified.  It is similar to the BFOQ for women in a topless bar because the essence of the business is providing nude women for entertainment.    As to Eugene's concern that this BFOQ might extend to entire communities in which the religion requires segregation, again the emphasis is on the identity of the business and the employer would have the burden to demonstrate that the religious purpose truly dominates.  

The Johnson Controls standard  that the discriminatory requirement must "relate to the ability to perform the duties of the job" must be combined with the "essence of the business"  test, and the result seems pretty clear when it comes to kosher food production.  If you don't follow the kosher rules, its not kosher, and the essence of the business can't be achieved.  Remember, Southwest Airline's claim that sexy young women were part of the airline's identity was rejected because their primary business was transporting people from point A to point B, not providing eye candy to passengers.  Here too, the religious BFOQ would be properly limited to those instances where the employer's product would not be "authentic" under verifiable religious-based rules, necessitating discrmiinatory hiring practices. 

As Eugene notes, however, it gets tricky when we take this any further. We don't accept cultural differences to justify BFOQ, such as Japanese or South American businessmen who refuse to deal with female sales executives - - in those cases the courts have held that U.S. companies cannot use the BFOQ exception to hire only males.  Why is the cultural limitation there any less valid than a religious based limitation if it would truly cripple a company's international marketing abilities?  

"WorldSecure <brgslaw.com>" made the following annotations on 12/18/00 09:24:06
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