Legal Memorandum: FMLA, BFOQ, and Business Necessity in Employment Law

This assignment addresses two key topics in employment law: FMLA (Family and Medical Leave Act) issues and the application of BFOQ (Bona Fide Occupational Qualification) and business necessity defenses. The first section analyzes a scenario where an employee, Joe, requests unpaid leave to care for his grandmother. The response, in the form of a memorandum, examines both Federal and California FMLA eligibility requirements, clarifying the employer's legal obligations regarding granting leave and job protection. The second section discusses BFOQ and business necessity defenses, providing definitions and examples. It references the Third Circuit Court of Appeals case of Healy v. Southwood Psychiatric Hospital, where BFOQ was applied, and the Hooters waitress weight lawsuit, where the business necessity defense was considered. The assignment highlights the limitations and justifications for these defenses in employment discrimination cases, and how these concepts apply in the real world.

Topic 1: FMLA Issues
Memorandum
To: Mr. A
From: Mr. C
CC: Ms. B
Date: June 12, 2019
Subject: Joe’s request for unpaid leave
The Federal FMLA allows leave to care of parents/guardians but does not include grandparents
(Yang & Gimm, 2013). Under the California FMLA, we are obligated to provide Joe 6 weeks of
paid leave or up to 12 weeks of unpaid leave (subject to his previous leave record) and retain his
job (Guerin, n.d.).
I suggest retaining his job and granting Joe six weeks of unpaid leave.
Thank you
Topic 2: BFOQ and Business Necessity Defenses
Mr. H and Mr. M
BFOQ and Business Necessity defenses are limited provisions available against discrimination
against employees. BFOQ allows for discrimination if the job requirements require a specific
age, gender, race or national origin while business necessity defense can be used to prove that
certain qualifications are required to conduct business successfully.
I agree with the premise in the Third Circuit Court of Appeals case of Healy v. Southwood
Psychiatric Hospital, wherein the BFOQ carried because the Judge ruled that victims of abuse
would be more comfortable with female aides than males (Cavico & Mujtaba, 2016). The
gender of the workers would make a difference in the comfort of the patients which should be
the topmost concern of their jobs.

In the case against Hooters by one of its ex-employees ("Judge allows Hooters waitress weight
lawsuit", 2011), regarding discrimination based on her weight, the business necessity defense has
been suggested. I don’t think this can be used since the business requires the servers to provide
good customer service which does not depend on their appearance but their skills at serving.

References
Cavico, F. J., & Mujtaba, B. G. (2016). The bona fide occupational qualification (BFOQ)
defense in employment discrimination: A narrow and limited justification
exception. Journal of Business Studies Quarterly, 7(4), 15.
Guerin, L. Family and Medical Leave in California. Retrieved from https://www.nolo.com/legal-
encyclopedia/family-medical-leave-california.html
Judge allows Hooters waitress weight lawsuit. (2011). Retrieved from
http://www.nbcnews.com/id/38851219/ns/business-world_business/t/judge-allows-
hooters-waitress-weight-lawsuit/#.XQAMnogzbIU
Yang, Y. T., & Gimm, G. (2013). Caring for elder parents: A comparative evaluation of family
leave laws. The Journal of Law, Medicine & Ethics, 41(2), 501-513.