The Tennessee Human Rights Act prohibits employment practices that discriminate on the basis of race, creed, color, religion, sex, age, or national origin (TN Stat. Sec. 4-21-101 et seq.). The law applies to all public employers and to private employers with eight or more employees.
The Tennessee Handicap Discrimination Law applies to all employers and prohibits employment practices that discriminate on the basis of disability (TN Stat. Sec. 8-50-103 et seq.). While neither law specifically addresses the issue of preemployment inquiries, employers that ask applicants about any of these characteristics are likely to violate these provisions unless the characteristic is job related.
Bona fide occupational qualification (BFOQ) exception. The Act permits an employer to make an employment inquiry about an applicant's religion, sex, or age only if it is reasonably necessary to the normal operation of the employer's business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job in question (TN Stat. Sec. 4-21-406(a) and TN Stat. Sec. 4-21-407). According to the Tennessee Human Rights Commission, a BFOQ exception is not warranted when based on:
• Assumptions of the comparative general employment characteristics of persons of a particular group, such as their turnover rate
• Stereotypical characteristics, such as mechanical ability or aggressiveness
• Customer, client, coworker, or employer preference
• Historical usage, tradition, or custom
• The necessity of providing separate facilities of a personal nature, such as restrooms or dressing rooms (TN Admin. Code 1500-01-02-.05)
In order to be a BFOQ, a characteristic must be absolutely essential to the ...