Affirmative defense is proved and less discriminatory alternatives are not shown to be available
By: LN on Nov 01, 2012 05:22:52 PM
[1] In General
 
The relevant regulation provides that, once employment discrimination is established, this discrimination is nonetheless lawful when a proper, relevant affirmative defense is proved and less discriminatory alternatives are not shown to be available. 1 Thus, the regulation makes clear that the employer or other covered entity that has been found to have engaged in discrimination bears the burden of establishing the defense. The regulation lists the following "permissible defenses": 2 
1. Bona fide occupational qualification (BFOQ). 3
 
2. Business necessity (BND). 4
 
3. Job-relatedness.
 
4. Security regulations.
 
5. Non-discrimination plans or affirmative action plans.
 
6. Discrimination otherwise required by law.

 
Additional regulations address defenses against specific types of discrimination. 5

[2] Bona Fide Occupational Qualification Defense
 
FEHA provides that conduct it defines as "an unlawful employment practice" escapes being so defined if "based upon a bona fide occupational qualification" (BFOQ). 6 The regulation specifies that, when an employer or other covered entity has a practice that on its face excludes an entire group of individuals on a basis enumerated in FEHA (e.g., all women or all individuals with lower back defects), the employer or other covered entity must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined. 7
 
These principles are enshrined in case law, making the availability of a BFOQ defense an extremely narrow exception to the general prohibition of discrimination. The courts have said that the principle of nondiscrimination requires that, in order to rely on the BFOQ exception, an employer has the burden of proving that it had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all members of an FEHA-protected category, e.g., women, would be unable to perform safely and efficiently the duties of the job involved. Even if an employer can demonstrate that certain jobs require members of one sex, the employer must also bear the burden of proving that, because of the nature of the operation of the business, they could not rearrange job responsibilities in order to reduce the BFOQ necessity. 8
 
The BFOQ defense is expressly denoted as the business justification standard to be used in overt discrimination cases, i.e., cases involving disparate treatment. 9 When applied to justify overt disparate treatment, 10 it has two components: 11 
1. First, the employer must demonstrate that the occupational qualification is reasonably necessary to the normal operation of the particular business.
 
2. Secondly, the employer must show that the categorical exclusion based on a protected class characteristic is justified, i.e., that all or substantially all of the persons with the subject class characteristic fail to satisfy the occupational qualification.


[3] Business Necessity Defense
 
In contrast to the BFOQ defense, 12 the business necessity defense (BND) is to be applied in connection with facially neutral practices that have a demonstrably disproportionate and adverse impact 13 on members of a protected class. The regulation specifies that, when an employer or other covered entity has a facially neutral practice that has an adverse impact (i.e., is discriminatory in effect), the employer or other covered entity must prove that there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business and that the challenged practice effectively fulfills the business purpose it is supposed to serve. The practice may still be impermissible when it is shown that there exists an alternative practice that would accomplish the business purpose equally well with a lesser discriminatory impact. 14
 
As with the BFOQ defense, 15 these principles are enshrined in case law. The courts have said that, to constitute a BND, an employment practice with disproportionately adverse impact must be shown to be necessary to safe and efficient job performance. The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override the impact on any protected category of persons. The BND is concerned with facially neutral rules, standards, and criteria, rather than with class-based exclusion. It is conceivable that a business justification that would not suffice as a BFOQ for class-based disparate treatment might, nevertheless, suffice under the adverse impact/business necessity standard. 16

[4] Other Available Defenses
 
The relevant regulation specifies other defenses available in appropriate circumstances. These include: 17 
1. The defense of job-relatedness may be permissible in certain employee selection cases. 18
 
2. Notwithstanding a showing of discrimination, an employment practice that conforms to applicable security regulations established by the United States or the State of California is lawful.
 
3. Notwithstanding a showing of discrimination, such an employment practice is lawful that conforms to a bona fide voluntary affirmative action plan as discussed in 2 Cal. Code Reg. § 7286.8, a non-discrimination plan pursuant to Labor Code Section 1431 (Government Code Section 12990), or an order of a state or federal court or administrative agency of proper jurisdiction.
 
4. Notwithstanding a showing of discrimination, such an employment practice is lawful when required by state or federal law or when pursuant to an order of a state or federal court of proper jurisdiction.
 

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Michael Mordechai YadegariReviewsout of 83 reviews