EMPLOYER BUSINESS AND JOB DEFENSES IN CIVIL-RIGHTS ACTIONS

In civil rights actions, employee-plaintiffs alleging discrimination m ust attempt to prove a prima facie case;1 and if accomplished the empl oyer-defendant must attempt to rebut such cases with some type of defe nse. These defenses may be very narrow and specific in scope such as t he seniority or merit system defenses explicitly provided for under th e 1963 Equal Pay Act (EPA). On the other hand, broader ''business'' an d or ''job'' defenses (and the wording and meaning varies from situati on to situation) have been both devised by the courts as standards of behavior for employers, and stipulated for employers by legislation. T his 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 nec essary'' defense provided in both the Civil Rights Act of 1964 and in the Age Discrimination in Employment Act of 1967; (3) the business nec essity 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 accom modation 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 al l those involved in employee relations law.