1. Occupational Qualifications

Bona Fide Occupational Qualification Rule (BFOQ)

Where the job itself necessarily requires a particular qualification, then the job applicant or worker who does not possess it may be disqualified on that basis. This will not be unlawful discrimination. (Azucena, 2016)

E.g., One whose job is to preach the teachings of a religious sect must himself/herself be a member of that sect; or a sex-based qualification is permissible only if the employer establishes that sex is genuinely necessary to the job under the BFOQ test; physical demands alone do not automatically disqualify women.

To justify a BFOQ, the Er must prove two factors:

• That the employment qualification is reasonably related to the essential operation of the job involved; and
• That there is a factual basis for believing that all or substantially all persons who do not meet the qualification would be unable to properly perform the duties of the job. (Star Paper v. Simbol, G.R. No. 164774, 12 Apr. 2006)

NOTE: BFOQ is related to the Reasonable Business Necessity Rule. There must be a business necessity for ERs to require certain attributes possessed by a person in relation to the job it is to be done or performed. Otherwise, if you are discriminating against people and the standard qualification is not at all relevant to the job that is to be performed then one will be guilty of discrimination.

The petitioner is only a non-teaching personnel; her interaction with SSCW’s students is very limited. It is thus quite impossible that her pregnancy out of wedlock caused such a grave scandal, as claimed by SSCW, as to warrant her dismissal.

SSCW, as Er, undeniably has the right to discipline its Ees and, if need be, dismiss them if there is a valid cause to do so. However, as already explained, there is no cause to dismiss the petitioner. Her conduct is not considered by law as disgraceful or immoral. Further, the respondents themselves have admitted that SSCW, at the time of the controversy, does not have any policy or rule against an Ee who engages in pre-marital sexual relations and conceives a child as a result thereof. There being no valid basis in law or even in SSCW’s policy and rules, SSCW’s dismissal of the petitioner is despotic and arbitrary and, thus, not a valid exercise of management prerogative. (Leus v. St. Scholastica’s College Westgrove, G.R. No. 187226, 28 Jan. 2015)

Q: Fil-Aire Aviation Company (FIL-AIRE) is a new airline company recruiting flight attendants for its domestic flights. It requires that the applicant be single, not more than 24 years old, attractive, and familiar with three major Visayan dialects, viz: Ilongo, Cebuano, and Waray. Lourdes, 23 years old, was accepted as she possessed all the qualifications.

After passing the probationary period, Lourdes disclosed that she got married when she was 18 years old, but the marriage was already in the process of being annulled on the ground that her husband was afflicted with a sexually transmissible disease at the time of the celebration of their marriage. As a result of this revelation, Lourdes was not hired as a regular flight attendant. Consequently, she filed a complaint against FIL-AIRE, alleging that the pre-employment qualifications violate relevant provisions of the Labor Code and are against public policy. Is the contention of Lourdes tenable? Discuss fully. (2012, 1995 BAR)

A: YES. The contention of Lourdes is tenable. When she was not hired as a regular flight attendant by FIL-AIRE because she disclosed that she got married when she was 18 years old, the airline company violated the provision of the Labor Code, which states:

“It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.”

Bona fide occupational qualification exception

When the employer can prove that the reasonable demands of the business require a distinction based on marital status and there is no better available or acceptable policy which would better accomplish the business purpose, an employer may discriminate against an employee based in the identity of the employee’s spouse. (Star Paper Corp. vs. Simbol, G.R. No. 164774, 2006)

The Court sustained the validity of employer policy prohibiting an employee from having a personal or marital relationship with an employee of a competitor. The prohibition was reasonable under the circumstances because relationships of such nature might compromise the interests of the company. (Duncan Association of Detailmen v. Glaxo Wellcome, G.R. no. 162994, 2004)

Bona Fide Occupational Qualification (BFOQ)

Where the job itself necessarily requires a particular qualification, then the job applicant or worker who does not possess it may be disqualified on that basis and such will not be considered unlawful discrimination.

Exception: To justify a BFOQ, the employer must prove that:

• The employment qualification is reasonably related to the essential operation of the job involved; and
• There is factual basis for believing that all or substantially all persons who do not meet the qualification would be unable to properly perform the duties of the job (Star Paper Corporation, et. al. vs. Simbol, et. al., G.R. No. 164774, 2006).

The Supreme Court had upheld the dismissal of a cabin crew member for being unable to trim down his weight. The Court classified such weight standards as a BFOQ, which is defined as the employment qualifications imposed by an employer such as sex, religion, or national origin as a limiting factor in performing a certain job. In the instant case, PAL is a common carrier and from the nature of its business and for reasons of public policy, it is bound to observe extraordinary diligence for the safety of the passengers it transports. A BFOQ on weight standards in this case was deemed to be necessary and justified given the normal operations of PAL. (Armando Yrasuegui v. Philippine Airlines, Inc., G.R. No. 168081, October 17, 2008)

AUTHORIZED CAUSES

• Installation of Labor-Saving Devices: The introduction of machinery or devices that replace or reduce the need for human labor, rendering certain positions redundant.
• Redundancy: The services of the employee are in excess of what is reasonably demanded by the business, and their position is no longer necessary for the operation of the enterprise. Redundancy can arise from overstaffing, the elimination of a position, or when the work involved has been restructured or reorganized.
• Retrenchment to Prevent Losses: The employer may reduce its workforce to prevent or minimize substantial and imminent losses. Retrenchment is an economic measure to save the business from financial difficulties.
• Closure or Cessation of Operation: The employer decides to close or cease its business operations either entirely or partially. This may be due to bankruptcy, cessation of operations, or when continuing the business is no longer viable.
• Disease: When an employee is suffering from a disease and his or her continued employment is prohibited by law or is prejudicial to his or her health, as well as to the health of co-employees. The termination must be based on a certification from a competent public health authority that the disease is incurable within six months despite proper medical treatment.

Grounds: (RRLCD)

• Redundancy
• Retrenchment to prevent losses
• Introduction of Labor-saving devices
• Cessation or Closure of Operation of the Establishment or Undertaking
• Disease

Requirement of Full-Time Academic Personnel or Teacher

• Possesses at least the minimum academic qualifications prescribed by the Department;
• Paid monthly or hourly, based on the regular teaching loads as provided for in the policies, rules and standards of the Department and the school;
• Total working day of not more than eight (8) hours a day is devoted to the school;
• Has no other remunerative occupation elsewhere requiring regular hours of work that will conflict with the working hours in the school; and
• Not teaching full-time in any other educational institution.

NOTE: All teaching personnel who do not meet the foregoing qualifications are considered part-time. (Sec. 45, Manual of Regulations for Private Higher Education)