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Nevada Law Library

Defenses Against Employment Discrimination Claims Under Title VII Of The Civil Rights Act


The Defense of Bona Fide Occupational Qualification


If the plaintiff’s religion, sex, or national origin is part of a bona fide occupational qualification, the defendant has the burden of proving both of the following elements by a preponderance of the evidence:


1.                  That the occupational qualification is reasonably necessary to the normal operation of the defendant's business or enterprise; and

2.                   That the defendant had reasonable cause to believe that all other classes of individuals would be unable to perform the job safely and efficiently, or that it was impossible or highly impractical to consider the qualifications of each class of employee.

See 42 U.S.C. § 2000e-2(e)(1) ("it shall not be an unlawful employment practice for an employer to hire and employ employees. . . on the basis of [their] religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . ."). "We reiterate our holdings in [Western Airlines, Inc., v. Criswell, 472 U.S. 400 (1985)] and [Dothard v. Rawlinson, 433 U.S. 321 (1977)] that an employer must direct its concerns about a woman's ability to perform her job safely and efficiently to those aspects of the woman's job-related activities that fall within the 'essence' of the particular business." Int'l Union, UAWv. Johnson Controls, Inc., 499 U.S. 187, 206-07 (1991) (no "factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved"); see also Criswell, 472 U.S. at 413 (suggesting that bona fide occupational qualification relates to the "essence" or "central mission" of employer's business) (citing Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976)); Frank v. United Airlines, Inc., 216 F.3d 845, 855 (9th Cir. 2000) (discrimination pursuant to bona fide occupational qualification must be "reasonably necessary" to the "normal operation" of the employer's particular business, and must concern "job-related skills and aptitudes").

"Under Title VII, the [bona fide occupational qualification] defense is not available at all where discrimination is based on race or color." Morton v. United Parcel Serv., 272 F.3d 1249, 1260 n.11 (9th Cir. 2001).

The Defense of Bona Fide Seniority System

42 U.S.C. § 2000e-2(h) provides, in relevant part:

[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .

Bona fide seniority systems are valid under Title VII pursuant to 42 U.S.C. § 2000e-2(h), even though such systems may perpetuate pre-Act discrimination. See Int'l. Bhd. of Teamsters v. United States, 431 U.S. 324, 348-55 (1977). Seniority systems do not violate Title VII even if they have a disproportionate effect on a protected group, so long as they are not intentionally discriminatory. See Pullman-Standard v. Swint, 456 U.S. 273, 289 (1982); Balint v. Carson City, 180 F.3d 1047, 1051 (9th Cir.1999) (under Title VII, "seniority systems are a valid method of providing different levels of compensation and privileges, even if they have a discriminatory impact on employees"). A seniority system is not illegal provided it is not the result of an intent to discriminate on prohibited grounds; the issue of intent is a necessary element of a Title VII action challenging the seniority system and is not merely an affirmative defense to such a challenge. See Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 905 (1989); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1046 n.7 (9th Cir. 1996) ("A 'bona fide' seniority system is one that was created for legitimate purposes, rather than for the purpose of discrimination."). Seniority systems necessarily "contain ancillary rules that accomplish certain necessary functions, but which may not themselves be directly related to length of employment" California Brewers Ass'n v. Bryant, 444 U.S. 598, 604, 607 (1980) (reversing circuit determination that "fundamental component" of seniority system is "the concept that employment rights should increase as the length of an employee's service increases.").



The Defense of After-Acquired Evidence


If an employer takes an adverse employment action such as discharging an employee for a discriminatory reason, later-discovered evidence that the employer could have used to discharge the employee for a legitimate reason does not immunize the employer from liability, but the employer does not have to offer reinstatement or front pay and only has to provide back pay "from the date of the unlawful discharge to the date the new information was discovered." McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362 (1995); see also Rivera v. Nibco, Inc., 364 F.3d 1057, 1071 n.16 (9th Cir. 2004); O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761-62 (9th Cir. 1996). The employer must prove by a reponderance of the evidence that it would have fired the employee because of the after-acquired evidence. O'Day, 79 F.3d at 761.




Source:  Ninth Circuit Manual of Model Jury Instructions (Civil)