Defenses to Employment Discrimination

Employers may feel or not be aware that there are some defenses on their behalf in regards to employment discrimination cases, bona fide occupational qualification (BFOQ) and business necessity. Bona fide occupational qualifications permit discrimination legally because there is a need for the employer’s particular business. The BFOQ defense is used in situations when, for example, authenticity is necessary, such as a female as BFOQ modeling Victoria Secrets lingerie. This can be taking in consideration when safety is involved. A high security correctional housing male inmates uses male guards would fall under this concept. Even though it’s a defense, the burden of proof falls on the employer to prove that it is necessary for a BFOQ within the organization.
Business necessity is a non-discriminatory reason for an employer’s policy that seems to discriminate against a protected class. For example, an employer may require all employees to have a good credit history within the last twenty years. A request of this type may adversely affect employees between the ages of 18-21 because they may have a short or no credit history. If the employer can show that the credit history is needed because the position involves handling money and finances, the request or policies may be justified by business necessity. Business necessity permits an employer whose workplace policies are necessary for performance, but have a adverse impact to still use them if the requirements are legitimate. In this way, an employer is more likely to have policies with disparate impact only when those policies are necessary to performing the employer’s business.
How To Prevent Employment Discrimination

The HR unit should be the company’s expert of laws and regulations that affect the daily operations and work culture. Discrimination cases can lead to harsh penalties from the EEOC or company loosing money because settlements or judgments. An article in the November 1999 issue of Workforce listed five tips to help prevent discrimination in the organization as well as prevent decreased productivity and low morale which results from discrimination in the organization.
The first tip states “never retaliate against an employee for filing complaints concerning discrimination”. It is against the law to punish employees who files or cooperates with complaints regarding discrimination. Title VII prohibits retaliation against employees who have opposed an illegal employment practice, as well as, protects those who have testified or participated in investigations. The next tip states the employer should “eliminate any illegal screening practices”. The organization wants to make sure that their neither policies nor employment testing has a negative impact on a protected class. HR should make sure that the selection process is free of any opportunities of discriminatory claims. For example, HR should ensure that only those with extensive interview skills conduct interviews and ask all applicants the same question.
Third, HR should “set the example for appropriate behavior”. HR should be performing their job in a fair and impartial manner. With any organization, you lead by example. Employees pay attention to those who are their superiors and take on the notions that if my boss can do it, so can I, which is the wrong perception to adopt. If employees see that HR treat everyone the same, show no favoritism, no matter who they are, they will have more respect for the unit and attempt to follow their lead.
Fourth, “never ignore inappropriate behavior”. Ignoring inappropriate behavior is one of the worst, if not “the” worst thing someone can do. Everyone is guilty at some point for being a witness to inappropriate behavior but for whatever reason walked away or turned our head as if we didn’t see it. When inappropriate behavior has been witnessed, action should be taken immediately no matter how big or small to inform the party involved and others in the organization that the behavior will not be tolerated.
Last but not least, “involve the employees”. Employees like to feel that they have a part in the organization. The responsibility of maintaining a discrimination-free environment should be shared with employees. They should know and understand that they can bring their grievances or complaints to their reporting supervisor/manager. By bringing issues or concerns to their reporting manager, they are able to be the eyes and ears because management does not see everything; therefore, some things have to be brought to their attention.
Employment discrimination doesn’t appear to be going anywhere, anytime soon. Even though it may be here to stay, we can keep it to a bare minimum. The HR unit should educate everyone, especially from the first line supervisor to the CEO. Information can be obtained from the Equal Employment Opportunity Commission, EEOC, regarding employment laws and regulations. The HR unit can distribute the information to employees or advise them to visit the EEOC’s website.
The Civil Rights Act of 1964 protects employees on the basis of race, color, sex, religion and national origin. Title VII currently do not protect aliens not authorized to work in the US and sexual orientation. Title VII is the most significant and common of the laws created to slow down or stop discrimination. The Equal Pay Act of 1963 prohibits an employer from paying an employee of one gender less money than the opposite gender if performing the same work. The HR unit should be aware that the EPA only relates to pay differences based on gender, nothing prevents male from claiming pay inequities and make sure that the job titles accurately reflect job duties and responsibilities.
Age Discrimination in Employment Act of 1967 protects employees of an organization over the age of 40. One thing employers have to keep in mind under the ADEA, age and job performance has no bearing on one another. The employee must maintain an acceptable job performance rating no matter their age; consequently, if the employee’s job performance decline, the employee may be subject to termination.
Pregnancy Discrimination Act of 1978 prohibits employers from discriminating against women who are pregnant, after childbirth or experiencing medical problems. The act guarantees the employee will be assigned their job when they return from medical leave and they are not forced to take. The FMLA or Family Medical Leave Act comes into play when the employee has to take time off due to upcoming childbirth or other medical issue.
American with Disabilities Act, ADA, protects those individuals with a disability who either seek employment or currently employment. ADA calls for the employer to make reasonable accommodations to ensure the employee will be able to perform the essential functions required of the position seeking or in currently. Discussing a person’s disability should be used with great caution and should only be discussed with the applicant/employee voluntarily tell you about it.
Employers should use preventive measure to ensure that their organizations do not have to deal with the time-consuming investigation and legal proceedings due to discrimination allegations. The should make sure that appropriate behavior is occurring at all times, the employees are involved in keeping the environment stress free and taking care of situations when they happen as they happen. We have the knowledge, we have the ability to keep discrimination out of the workplace and make it a comfortable environment for everyone.
Anderson, P. L., Kazmierski, S., & Cronin, M. E., (1995, April). Learning Disabilities, Employment Discrimination and the ADA. Journal of Learning Disabilities, 28, 196-204.
Arrendondo, R. H. (2002). Different Strokes for Different Folks: Balancing the Treatment of Employers and Employees in Employment Discrimination Cases in Courts within the Tenth Circuit Court of Appeals. Journal of Public Law, 16, 261-286.
Bland, T. S. (1999, July) Equal Pay Enforcement Heats Up. HRMagazine, p. 138
Brady, T. ( 1998, March). How Equal Is Equal Pay? Management Review, p. 59.
DiCesare, C. B. (1996, July). Age Discrimination (O’Connor v Consolidated Coin Caterers Corp). Monthly Labor Review, p. 51.
Keller, J. (1991, July 18). AT;T Will Settle EEOC Lawsuit for $66 Million. Wall Street Journal, p. B8.

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