When Business Necessity Trumps a Claim of Discrimination

While it may be
surprising to some, the mere fact that workplace discrimination is occurring in
violation of federal or state law does not automatically mean that an aggrieved
worker is entitled to legal redress. Suppose that a particular employer has a
practice of only allowing individuals who pass a rigorous physical examination
and test to fill vacancies for a demanding outdoor climbing position. The
examination is designed to determine whether an individual is in good physical
health so that he or she can perform the job functions without becoming a
danger to themselves or to other coworkers. Suppose further that this particular
test is having a disparate impact on older workers – in fact, of the 100
applicants applying for one of 50 vacancies and who were older than 40 years of
age, only two passed the test and got hired (all other 98 applicants over the
age of 40 failed the test). The other 48 vacancies were filled by individuals
under the age of 40.

Is This
Discrimination?

The Age Discrimination in Employment
Act (ADEA) says that employers cannot discriminate against employees or
potential employees on the basis of their age if the employee/potential
employee is over the age of 40. If you were asked to determine whether the
company described above is discriminating against older potential works in
violation of the ADEA, what would your determination be? In making your decision,
you would probably consider two competing set of facts:

?? On the one hand, the employer’s
testing requirement appears to be neutral and all applicants regardless of
their age are subjected to the test. There is nothing indicating the test is
demeaning or harassing to any potential employee. Finally, it appears that the
testing requirement is being applied fairly because both of the older
applicants who passed the text were hired.

?? On the other hand, the testing
requirement does appear to be adversely impacting older workers more than
younger workers. Whereas only two percent of older workers appear to be able to
pass the test, presumably at least 48 percent of younger workers can pass the
test.  For more information you should contact an experienced Phoenix employment lawyer.

It is clear that a disparate effect
is being experienced by older workers, and this could give rise to a claim of
discrimination in violation of the ADEA. However, this does not necessarily
mean the claim will be successful. The business could defend against charges of
discrimination by invoking the “business necessity defense.”

What is the
Business Necessity Defense?

When it invokes the business
necessity defense, the business is essentially claiming that the alleged
discriminatory act or policy or the act having a disparate impact is actually
serving an overriding and legitimate business purpose. In the example provided
above, the business would claim the test is necessary to ensure workplace
safety and decrease incidents of fatal falls or falls resulting in serious
injuries. Business necessity defenses are most often successful where there is
evidence that:

?? The business does have an
overriding and legitimate purpose it is pursuing through the alleged
discriminatory act or policy;

?? The alleged discriminatory act or
policy is actually furthering and accomplishing the overriding and legitimate
purpose; and

"> text-indent: -0.25in;">?? The alleged discriminator act or
policy is reasonable and there are not reasonable alternatives available that
would further the overriding and legitimate purpose without creating
discrimination or disparate impacts.  For more information contact an experienced Tucson employment law attorney.

text-align: justify; text-indent: 0.5in;">In a workplace discrimination
claim, the burden is on the employer to both assert the business necessity
defense and to present sufficient evidence to support these propositions. If
the employer is able to do so, in most cases the aggrieved employee can counter
this evidence with other evidence or testimony that attacks the credibility of
the business’s evidence and witnesses.  Ariano & Reppucc, PLLC.

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