Current through Register 2022 Notice Reg. No. 14, April 8, 2022
If employment discrimination is established, this
employment discrimination is nonetheless lawful where a proper, relevant
affirmative defense is proved and less discriminatory alternatives are not
shown to be available. Except where otherwise specifically noted, one or more
of the following affirmative defenses may be appropriate in a given situation
to justify the employment practice in question. The following defenses are
generally referred to in the text of these regulations as "Permissible
(a) Bona Fide Occupational
Qualification (BFOQ). Where an employer or other covered entity has a practice
that on its face excludes an entire group of individuals on a basis enumerated
in the Act (e.g., all women or all individuals with lower back defects), the
employer or other covered entity must prove that the practice is justified
because all or substantially all of the excluded individuals are unable to
safely and efficiently perform the job in question and because the essence of
the business operation would otherwise be undermined.
(b) Business Necessity. Where an employer or
other covered entity has a facially neutral practice that has an adverse impact
(i.e., is discriminatory in effect), the employer or other covered entity must
prove that there exists an overriding legitimate business purpose such that the
practice is necessary to the safe and efficient operation of the business and
the challenged practice effectively fulfills the business purpose it is
supposed to serve. The practice may still be impermissible where it is shown
that there exists an alternative practice that would accomplish the business
purpose equally well with a lesser discriminatory impact.
(c) Job-Relatedness. See section 11017(e) for
the defense of job-relatedness, which is permissible in employee selection
(d) Security Regulations.
Notwithstanding a showing of discrimination, an employment practice that
conforms to applicable security regulations established by the United States or
the State of California is lawful.
Non-Discrimination Plans or Affirmative
Action Plans. Notwithstanding a showing of discrimination, an employment
practice that conforms to the following is lawful:
(1) A bona fide voluntary affirmative action
plan as discussed below in section 11011;
(2) A non-discrimination plan, pursuant to
Government Code section
(3) An order of a state or
federal court or administrative agency of proper jurisdiction.
(f) Otherwise Required by Law.
Notwithstanding a showing of discrimination, such an employment practice is
lawful where required by state or federal law or an order of a state or federal
court of proper jurisdiction.