The Montana Human Rights Act prohibits discrimination in employment on the basis of sex, marital status, and pregnancy (MT Code Sec. 49-2-303et seq.). The law applies to all employers in the state. Under the law, it is unlawful to:
• Refuse to hire, discharge, or otherwise discriminate with respect to terms and conditions of employment.
• Publish an advertisement for employment specifying a limitation or discrimination as to sex, marital status, or pregnancy, unless based on a bona fide occupational qualification.
• Retaliate against an individual who opposes any practices prohibited by the Act or who files a complaint, testifies, assists, or otherwise participates in an investigation or proceeding under the Act.
• Aid, abet, incite, compel, or coerce an individual to violate the Act, or to attempt to do so.
Bona fide occupational qualification (BFOQ) exception. A distinction in treatment is permissible where sex or marital status is a BFOQ when the reasonable demands of the position require the distinction. The BFOQ exception also applies to advertising and employment applications; however, the exception is narrowly interpreted under the Act, and employers should be cautious in relying on such a rationale when making employment decisions that may have a discriminatory effect.
The 9th Circuit Court of Appeals has ruled that federal law under Title VII of the Civil Rights Act of 1964 (Title VII) allows the use of a BFOQ defense only as an "extremely narrow exception to the general prohibition of discrimination on the basis of sex" (Breiner v. Nevada Dept. of Corrections, 610 F.3d 1202 (9th Cir. 2010)). In this case, the employer wanted to hire only female correction officers to work at a women's prison ...