Protected classes. The Tennessee Human Rights Act prohibits employment practices that discriminate based on race, creed, color, religion, sex, age, or national origin (Tenn. Code § 4-21-101 et seq.).
The Tennessee Disability Act prohibits employment practices that discriminate based on disability (Tenn. Code § 8-50-103). Both laws apply to all public employers and to private employers with eight or more employees. 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 (Tenn. Code §§ 4-21-406(a), 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; or
• The necessity of providing separate facilities of a personal nature, such as restrooms or dressing rooms (Tenn. Admin. Code § 1500-01-02-.05).
The BFOQ exception applies only in limited circumstances, and in general, courts have been extremely reluctant to sanction otherwise discriminatory practices on BFOQ grounds. Employers should use caution in relying on the BFOQ rationale and should always ...