Employment discrimination is a serious issue that can affect both employees and employers. Those who face discrimination in the workplace may suffer from lower morale, reduced productivity, and emotional distress. And of course, employers who discriminate against their workers may (and should) face legal consequences, such as lawsuits, fines, and reputational damage.
Employment discrimination occurs when an employer treats an employee or a job applicant unfavorably because of their race, color, religion, sex, national origin, age, disability, or genetic information. These are known as “protected characteristics” under federal law. Some states and localities may also have additional protected characteristics, such as sexual orientation, gender identity, marital status, or military status. Employers are also required to provide reasonable accommodations to employees or applicants with disabilities, unless doing so would cause undue hardship to the employer.
As with all important issues in the workplace, there is a conversation around what constitutes discrimination. Sometimes, employers may have legitimate, non-discriminatory reasons for their decisions or policies.
In this article, we will discuss some of the common defenses that employers may use in employment discrimination cases, and how employers can prevent or minimize discrimination claims in the first place. These include:
- Bona Fide Occupational Qualification (BFOQ)
- Business Necessity
- Same Actor Inference
- After-Acquired Evidence
Now, let’s see what each of these defenses mean…
Bona Fide Occupational Qualification (BFOQ)
One of the most common defenses that employers may use in employment discrimination cases is the bona fide occupational qualification (BFOQ) defense. This defense applies when an employer can show that a certain protected characteristic is essential or necessary for the performance of a specific job or function. For example, if you were hired to be an excellent apple picker, but you specialize only in picking oranges, a conversation may need to be had. It’s an oversimplified example, but you get the point.
The BFOQ defense is not applicable for discrimination based on race or color, as there is no job or function that requires a person to be of a certain race or color. The BFOQ defense is also not applicable for discrimination based on age, unless the employer can show that age is a proxy for another characteristic that is essential for the job, such as physical fitness or safety.
Business Necessity
Another common defense that employers may use in employment discrimination cases is the business necessity defense. This defense applies when an employer can show that a certain policy or practice that has a disparate impact on a protected group is justified by a legitimate and important business goal or objective.
For example, an employer may be able to defend a requirement that employees be able to lift 50 pounds, if the employer can show that this is necessary for the safe and efficient operation of the business, and that no less discriminatory alternatives are available.
Same-Actor Inference
Another common defense that employers may use in employment discrimination cases is the same-actor inference. This defense applies when the same person who hired, promoted, or praised an employee is also the person who fired, demoted, or criticized the same employee. The employer may argue that this shows that the adverse action was not motivated by discrimination, but by other factors, such as performance, conduct, or economic reasons.
For example, an employer may be able to rebut a claim of age discrimination by showing that the same manager who hired the employee when he was over 40 years old also fired him when he was over 50 years old. The employer may contend that this indicates that the manager did not have any bias against older workers, and that the termination was based on legitimate grounds.
After-Acquired Evidence
Another common defense that employers may use in employment discrimination cases is the after-acquired evidence defense. This defense applies when an employer discovers, after taking an adverse action against an employee, that the employee had engaged in misconduct or wrongdoing that would have justified the adverse action anyway.
For example, an employer may be able to limit its liability for a wrongful termination claim by showing that, after firing the employee, it learned that the employee had lied on his resume, stolen company property, or violated company rules.
The big one here? The employer must be able to prove that the misconduct or wrongdoing was serious enough to warrant the adverse action, and that the employer would have taken the same action if it had known about it at the time.
How to Prevent or Minimize Discrimination Claims
Employers can take several steps to create a fair and respectful workplace, such as:
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- Developing and implementing clear and consistent policies and procedures regarding equal employment opportunity, anti-discrimination, and anti-harassment.
- Providing regular and comprehensive training to all employees and managers on the laws and policies related to employment discrimination and harassment, and their rights and responsibilities.
- Establishing and enforcing a reporting and investigation process for complaints of discrimination and harassment, and ensuring that all complaints are taken seriously, handled promptly, and resolved appropriately.
- Documenting and maintaining records of all employment decisions and actions, and the reasons and criteria behind them.
- Reviewing and monitoring the impact and effectiveness of the policies and practices on the workforce, and making adjustments or corrections as needed.
- Seeking legal advice from a qualified employment attorney before taking any adverse action against an employee, or when faced with a charge or lawsuit of discrimination. Reach out to us here at Crone Law Firm. We can help.
Employment discrimination is a complex and challenging issue that can have significant consequences for both employees and employers. By understanding the laws and defenses related to employment discrimination, and by taking proactive measures to prevent or minimize discrimination claims, employers can protect their interests and foster a positive and productive work environment.