The Bona
Fide
Occupational
Qualification
Defense
(BFOQ)
Using this defense, the employer can discriminate if it is deemed to be necessary for the
performance of the job. Necessity, however, must be determined on the basis of actual
qualifications, rather than stereotypes about the abilities of a certain class. For example,
an employer is not expected to hire a man as a model for women’s clothes. Hires on the
basis of sexual privacy are covered under BFOQ. However, there are no BFOQs for
discrimination on the basis of race or color.
The Merit
Defense
This defense is used when decisions pertaining to hiring or promotion are made on the
basis of the results of test scores. However, tests must be validated in accordance with
professional standards and must be manifestly related to job performance.
The Seniority
Defense
System
This defense system occurs when employees are given preferential treatment because of
their length of tenure. As long as the system does not have its genesis in discrimination,
and is not used to discriminate and applies to all persons equally, it is lawful.
Table 9.5
The Equal Pay Act
The Equal Pay Act (EPA) is a United States federal law that seeks to equalize the salaries and wages paid to
employed women with the levels paid to men for work of an equal nature and quantity. The Act amended the
Fair Labor Standard Act of 1938 and was a key element of President F. Kennedy’s New Frontier program. Under
the terms of the EPA, women and men performing jobs that demand “equal skill, effort, and responsibility, and
which are performed under similar working conditions” must be paid the same. The Act protects the rights of
both sexes. An individual who seeks to establish a case under the Act must demonstrate that:
1.
An employer pays one sex more than another
2.
Both sexes perform an equal amount of work that demands equal levels of skill, effort and responsibility
3.
Working conditions for both sexes are equivalent
An employer that is accused of discrimination under the EPA can present one of four affirmative defenses. An
employer may legally pay employees of one sex more than another sex if wages are based on a system of
seniority, a system of merit, a system that distinguishes payment on the basis of quality and quantity of
production (e.g., certain piece rates), or if payment is differentiated on “any other factor other than sex.” Of
these four defenses, the “factor other than sex” defense has been invoked most frequently and has been the
subject of intense debate and controversy. Critics have argued that this defense enables employers to
fabricate other reasons for the wage gap.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) prevents employers from discriminating against workers on the
basis of their physical or mental disabilities. In addition, employers are required to make reasonable
accommodations to known disabilities, as long as such accommodations do not impose an undue burden on
the business. To bring a successful ADA claim, the plaintiff is required to demonstrate that he or she:
•
Has a disability
•
Suffered an adverse employment decision because of that disability
108
Chapter 9 Employment and Labor Law
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