Title 104 | Chapter 001 | Regulation 040
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104 KAR 1:040.Guidelines for advertising employment or licensing opportunities.
Section 1.
Definition. "Bona fide occupational qualification" is defined by 42 U.S.C. 2000e-2(e) and 29 U.S.C. 623(f).Section 2.
Help Wanted Notices or Advertisements.An advertisement or notice shall utilize a neutral job qualification, title, term, phrase, or description unless a person's sex, religion, age between forty (40) and seventy (70), or national origin is determined by the commission to be a bona fide occupational qualification.Section 3.
Bona-fide Occupational Qualification.(1)
An employer, labor organization, licensing agency, or employment agency shall have the burden of establishing with the commission that either sex, religion, age between forty (40) and seventy (70), or national origin is a bona fide occupational qualification.(2)
A sex or gender-based bona fide occupational qualification shall:(a)
Be necessary for reasons of personal modesty or privacy; and(b)
Comply with EEOC guidelines on "Job opportunities advertising" as found in Part 1604—Guidelines on Discrimination Because of Sex, 29 C.F.R. 1604.5.Section 4.
(1)
A person who intends to publish, print, circulate, or display a job advertisement may request the commission to determine whether sex, religion, age between forty (40) and seventy (70), or national origin is a bona fide occupational qualification for the job to be advertised.(2)
(a)
Within three (3) workdays of receipt of the request, the commission shall:1.
Make a determination in writing; and2.
Forward its written determination.(b)
The determination of the commission shall be based on:1.
The specific job;2.
Whether the qualification is reasonably necessary to the normal operation of the business; and3.
Any other pertinent factors.Section 5.
Newspapers and other publications which print employment advertisements shall be encouraged by the commission to:(1)
Maintain lists of gender-neutral terms; and(2)
Instruct their employees to advise advertisers of gender neutral job qualifications, titles, and descriptions.Section 6.
(1)
In a conciliation agreement or order, the commission may include a provision requiring the respondent to use the term "equal opportunity employer", or a substantially similar term, in a notice or advertisement of employment or licensing opportunity.(2)
Persons advertising for employment opportunities shall be encouraged by the commission to use the terms specified in subsection (1) of this section in a notice or advertisement.HISTORY: (HR-4; 1 Ky.R. 238; eff. 1-8-1975; 18 Ky.R. 2868; 3184; eff. 4-14-1992; 19 Ky.R. 2083; 2393; eff. 5-10-1993; TAm eff. 9-12-2018; Cert eff. 1-29-2020; 50 Ky.R. 80; 51 Ky.R. 38; eff. 10-1-2024.)
FILED WITH LRC: June 11, 2024
CONTACT PERSON: Colt C. Sells, Staff Attorney Manager/Assistant General Counsel, Kentucky Commission on Human Rights, 312 Whittington Parkway, Suite 020, Louisville, Kentucky 40222, phone (502) 595-4024, email colt.sells@ky.gov.
104 KAR 1:040.Guidelines for advertising employment or licensing opportunities.
Section 1.
Definition. "Bona fide occupational qualification" is defined bySection 2.
Help Wanted Notices or Advertisements.(1)
An advertisement or notice shall utilize a neutral job qualification, title, term, phrase, or description unless a person's sex, religion, age between forty (40) and seventy (70), or national origin is determined(2)
Section 3.
Bona-fide Occupational Qualification.(1)
An employer, labor organization, licensing agency, or employment agency shall have the burden of establishing with the commission that either sex, religion, age between forty (40) and seventy (70), or national origin is a bona fide occupational qualification.(2)
A sex or gender-based bona fide occupational qualification shall:(a)
Be necessary for reasons of personal modesty or privacy; and(b)
Comply with EEOC guidelines on "Job opportunities advertising" as found in Part 1604—Guidelines on Discrimination Because of Sex, 29 C.F.R. 1604.5.Section 4.
(1)
A person who intends to publish, print, circulate, or display a job advertisement may request the commission to determine whether sex, religion, age between forty (40) and seventy (70), or national origin is a bona fide occupational qualification for the job to be advertised.(2)
(a)
Within three (3) workdays of receipt of the request, the commission shall:1.
Make a determination in writing; and2.
Forward its written determination.(b)
The determination of the commission shall be based on:1.
The specific job;2.
Whether the qualification is reasonably necessary to the normal operation of the business; and3.
Any other pertinent factors.Section 5.
Newspapers and other publications which print employment advertisements shall be encouraged by the commission to:(1)
Maintain lists of gender-neutral terms; and(2)
Instruct their employees to advise advertisers of gender neutral job qualifications, titles, and descriptions.Section 6.
(1)
In a conciliation agreement or order, the commission may include a provision requiring the respondent to use the term "equal opportunity employer", or a substantially similar term, in a notice or advertisement of employment or licensing opportunity.(2)
Persons advertising for employment opportunities shall be encouraged by the commission to use the terms specified in subsection (1) of this section in a notice or advertisement.Section 7.
(1)
(a)
(b)
(c)
(2)
(a)
(b)
1.
2.
3.
4.
HISTORY: (HR-4; 1 Ky.R. 238; eff. 1-8-1975; 18 Ky.R. 2868; 3184; eff. 4-14-1992; 19 Ky.R. 2083; 2393; eff. 5-10-1993; TAm eff. 9-12-2018; Cert eff. 1-29-2020; 50 Ky.R. 80; 51 Ky.R. 38; eff. 10-1-2024.)
FILED WITH LRC: June 11, 2024
CONTACT PERSON: Colt C. Sells, Staff Attorney Manager/Assistant General Counsel, Kentucky Commission on Human Rights, 312 Whittington Parkway, Suite 020, Louisville, Kentucky 40222, phone (502) 595-4024, email colt.sells@ky.gov.