Employer “Business” and “Job” Defenses in Civil Rights Actions

Abstract

In civil rights actions, employee-plaintiffs alleging discrimination must attempt to prove a prima facie case;¹ and if accomplished the employer-defendant must attempt to rebut such cases with some type of defense. These defenses may be very narrow and specific in scope such as the seniority or merit system defenses explicitly provided for under the 1963 Equal Pay Act (EPA). On the other hand, broader “business” and or “job” defenses (and the wording and meaning varies from situation to situation) have been both devised by the courts as standards of behavior for employers, and stipulated for employers by legislation. This article will analyze four important of these employer defenses: (1) the legitimate business reason and its antecedents in EPA litigation; (2) the Bona Fide Occupational Qualification (BFOQ) “reasonably necessary” defense provided in both the Civil Rights Act of 1964 and in the Age Discrimination in Employment Act of 1967; (3) the business necessity and job related standards promulgated in Griggs v. Duke Power, 401 U.S. 424 (1971), as eventually codified by the Civil Rights Act of 1991; and (4) the job relatedness/business necessity/reasonable accommodation defense of the Americans with Disabilities Act of 1990 (ADA). All of the above defenses pose current challenges to employers except probably the BFOQ, so that their examination should be of value to all those involved in employee relations law.