In order to guard against discrimination in the workplace, federal and state laws have been established to prohibit disparate treatment of people belonging to a protected class. Protected categories include groups that are considered to experience a particularly large amount of prejudice and are more likely to be the targets of discriminatory employment practices. Protected classes include race, gender, age, national origin and religion; some state laws include additional categories such as sexual orientation. One of the consequences of these laws is that employers may not require membership in or exclusion from a protected category as a condition for employment. The one narrow exception to this rule is when the requirement is a bona fide occupational qualification.
How Essential Is Your Requirement?
In order for an employer to be justified in requiring an employee to be of a particular gender or belong to a certain religion, it must be shown that the employee will not be able to properly perform the job duties without meeting that requirement. Be warned that just because you feel that certain hiring requirements will be beneficial to your business does not mean that a court would find that they are necessary for the job. For example, a clothing retailer may wish to exclusively hire pretty young women for sales positions, reasoning that they are most likely to attract a desired type of clientele. However, in an employment discrimination case, this employer will face the far tougher task of proving that pretty young women are the only ones who are able to sell its product.
Some Examples of Exceptions
Each discrimination case is heavily fact-intensive, but as a general rule, practices that are discriminatory on their face are very hard to defend because courts will scrutinize them intensely. Job postings that include requirements such as “male only,” “must be Christian” or “must be under 35” clearly discriminate against individuals in protected classes. Employers who nevertheless feel that these requirements are crucial to proper job performance should be prepared with supporting facts. For example, a religious institution wishing to hire clergy is justified in requiring potential hires to practice that religion. Age requirements may also be justified if there are valid safety concerns. Similarly, when some religions require gender segregation in schools and hire only female teachers to teach girls, courts are generally reluctant to interfere.
Prejudice Is Not Necessity
To avoid being accused of illegal discrimination, employers should think long and hard before posting requirements that may involve protected categories. It is not enough for the employer to be acting on instinct, gut feeling or general knowledge. Thus, an employer may not post an IT job for men only, arguing that “everyone knows” men are more knowledgeable about computers than women. Similarly, prejudiced customers who strongly prefer service personnel to be of a particular ethnicity do not provide the basis for a bona fide qualification. On the other hand, age cut-offs for physically intense jobs may be found acceptable if it can be shown that older employees in the position have a consistently declining safety record. Be sure that your employment policy is based on solid data that backs up the reasoning for your decisions.
Protecting Your Company
The best way to protect your company from accusations of discriminatory practices is to cut down on red flags as much as possible. If you believe your job description’s apparently discriminatory requirement is based on a bona fide occupational qualification, be sure that the facts are on your side. Sometimes, hiring decisions may not be so clear and cut. Even if you do not have a discriminatory requirement, you may feel that a candidate’s attributes may not make her or him a good fit for your business’s culture. While such determinations are subjective, you may still run afoul of anti-discrimination laws. If you find yourself potentially skirting a legal grey area, it is best to speak with an employment law attorney to clarify your position.
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