Are there any instances when discriminatory practices are permitted?
Business necessity. An employment practice that operates in a discriminatory manner-has a disparate impact
-would nevertheless be lawful if it were shown to be related to job performance or to accurately measure job capability and there is no nondiscriminatory practice that would be equally effective to meet the employer's needs. The business necessity exception has been confined primarily to safety or efficiency considerations. Business convenience is not sufficient.
Because of the high degree of economic and human risks involved, an airline was justified in requiring flight experience and a college degree as job qualifications for a pilot's position, notwithstanding the racially discriminatory impact of that policy.
The desire to preserve or to better a company's image or to cater to alleged customer preference, will not provide the underpinnings of a valid business necessity
defense.
Where there is a proven ``business necessity' for a particular employment practice, the practice may still be challenged as unlawfully discriminatory if there is an acceptable alternative that will serve business needs equally well, but will have a lesser impact on members of protected groups.
Bona fide occupational qualification. Discrimination will also be tolerated if it is a bona fide occupational qualification (BFOQ). If a particular religion, sex, age or national origin, or the absence of a physical or mental disability, is an actual qualification for performing a job and is necessary to the normal operation of the employer's business, it would qualify as a BFOQ.
There are no recognized BFOQ exceptions with respect to race or color, and number of jobs that would qualify for BFOQ exceptions to antibias rules is quite small. For example, age-unlike sex, religion or national origin-can have a degenerative effect on certain physical abilities that might justify a BFOQ.
Reprinted with permission. © CCH<p>Business necessity.</p>
Are there any instances when discriminatory practices are permitted?
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