SECTION 335:15-3-2. Sex as a bona fide occupational qualification

(a)   Narrow interpretation of exceptions. The Commission believes that the bona fide occupational qualification exception as to sex should be interpreted narrowly. Labels–"Men's jobs", and "Women's jobs"–tend to deny employment opportunities unnecessarily to one sex or the other.

(1)   The Commission will find that the following situations do not warrant the application of the bona fide occupational qualification exception:

(A)   The refusal to hire a woman because of her sex based on assumption of the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men.

(B)   The refusal to hire an individual based on stereotypes characterizations of the sexes. Such stereotypes include, for example, that men are less capable of assembling intricate equipment; that women are less capable of aggressive salesmanship. The principle of non-discrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group.

(C)   The refusal to hire an individual because of the preferences of co-workers, the employer, clients or customers.

(2)   Where it is necessary for the purpose of authenticity or genuineness, the Commission will consider sex to be a bona fide occupation qualification, e.g., an actor or actress.

(b)   Effect of sex-preference employer policies and practices.

(1)   If an employer has adopted a policy or practice which limits or prohibits the employment of females in certain occupations, e.g., jobs requiring the lifting or carrying of weights exceeding certain prescribed limits, during certain hours of the night, for more than a specified number of hours per day or per week and for certain periods of time before and after childbirth; the Commission has found that such policies and practices do not take into account the capacities preferences and abilities of individual females and therefore discriminate on the basis of sex. The Commission has concluded that such policies and practices conflict with and are superseded by Title 25 O.S. Section 1101 et seq. and Title VII of the Civil Rights Act of 1964. Accordingly, such policies and practices will not be considered as a basis for the application of the bona fide occupational qualification exception.

(2)   The Commission has concluded employer policies and practices which discriminate on the basis of sex with regard to the employment of minors are in conflict with and are superseded by Title 25 of the Oklahoma Statutes and Tile VII of the Civil Rights Act of 1964 to the extent that such laws are more restrictive for one sex. Accordingly, restrictions on the employment of minors of one sex over and above those imposed on minors of the other sex will not be considered a defense to an otherwise established unlawful employment practice or as a for the application of the bona fide occupational qualification exception.

(3)   A requirement that minimum wage and premium pay for overtime be provided for female employees will be scrutinized by the Commission. An employer will be deemed to have engaged in an unlawful employment practice if:

(A)   It refuses to hire or otherwise adversely affect the employment opportunities of female applicants or employees in order to avoid the payment of minimum wages or overtime pay required by State law; or

(B)   It does not provide the same benefits for male employees.

(4)   An employer will be deemed to have engaged in an unlawful employment practice if:

(A)   It refuses to hire or otherwise adversely affects the employment opportunities of female applicants or employees in order to avoid the provision of such benefits as those requiring special rest and meal periods, or physical facilities for women; or

(B)   It does not provide the same benefits for male employees.

(5)   Oklahoma Law may require that separate restroom facilities be provided employees of each sex. An employer will be deemed to have engaged in an unlawful employment practice if it refuses to hire or otherwise adversely affects the employment opportunities of applicants or employees in order to avoid the provision of such restrooms for persons of that sex.