It is this year’s Broadway musical that everyone wants to see but no one can get a ticket to for the next couple of years at least. It has been nominated for 13 Tony awards and is expected to win all or most of them. And too bad there is no Tony for “Best Use of the Bona Fide Occupational Qualification Defense  When Practicing Discriminatory Hiring.” If there were, “Hamilton” would surely win that one too.

“Hamilton,” the rap musical biography of American founding father Alexander Hamilton, is so popular that its producers decided to take the show on the road while its Broadway run was, and is, still going strong. It meant they had to hire an entire new cast of actors and actresses for key roles in the road company, as well as actors and actresses hired locally for secondary parts in the various cities ticketed for stops on the tour. For those not familiar with the show, “Hamilton” delivers a generally historically accurate portrayal of Hamilton’s life complete with period costumes, sets and storyline, but the musical score is all rap, and nearly all the key characters including Hamilton, George Washington and Thomas Jefferson are played by black, Latino and other non-white actors. The only key part played by a Caucasian is that of Britain’s King George III.

So the producers got themselves in a bit of a pickle when the help-wanted ads they placed in various theater industry publications specifically called for “non-white men and women in their 20s to 30s.” Typically such ads are vetted through Actors Equity, the actors’ union, and always include the qualifier “Performers of all ethnic and racial backgrounds are encouraged to attend (the auditions).” But not so in the ads for “Hamilton.”

New York being the Big Apple, some employment attorney was bound to not just notice the omission but to also publicly threaten to initiate legal proceedings against the people responsible for it. And New York City has its own, reputedly very strict, law against race discrimination called the Human Rights Law. “What if they put an ad out that said, ‘Whites only need apply?’ Why, African-Americans, Latinos, and Asians would be outraged,” said one such opportunistic lawyer, perfectly predictably.

The “Hamilton” producers wisely responded by reaffirming their commitment to diversity and agreeing to amend their ads. However they argued back that they were justified in their hiring practices because the essence of the show’s story was a reimagining of known history if it had been populated by minorities as central historical players. Therefore, they argued, being a minority was a bona fide occupational qualification, or BFOQ, for any of those jobs.

Their argument worked. No charges were actually brought forward, and the pickle went away. But for HR professionals it was a reminder that the concept of the Bona Fide Occupational Qualification is still very much a part of anti-discrimination law.

So what is a BFOQ? According to the law firm Fisher & Phillips LLP, it is “a quality or attribute of a candidate that you can take into consideration when making a decision about hiring or retention of a specific applicant or employee.”

BFOQs are probably more common in hiring in the arts than in any other arena, with a play like “Hamilton” being a prime example. Imagine, for example, you are making a movie and need someone to play somebody’s grandfather. You probably need a man for it and he probably needs to be older. And so on.

But once you get outside the arts, the issue gets murkier although BFOQs are still quite real.

Age can be a BFOQ, for example. Some professions can legally bar people above a certain age, such as police or firefighters or airline pilots, where public safety is the overriding factor. National origin has been accepted as a BFOQ if the employer can show that close familiarity with a particular language, culture, customs, and business practices is necessary for business success. And on it goes.

But these are very high bars to get over. The important thing to remember is that while BFOQs are real and legitimate, they have to be strictly and narrowly defined for a court to recognize them as legally justifiable reasons for discriminating against a protected group in hiring. No wise employer would resort to the concept of the BFOQ as a key part of its hiring strategy.

Sources: Fisher & Phillips LLP;