94-348 C.M.R. ch. 3, § 21 - DEFENSES

Defenses to an allegation of discrimination under this chapter or the Act may include, but are not limited to, the following:

1. Bona fide occupational qualification

A. It is a defense to unlawful employment discrimination under this chapter and the Act when such discrimination is based on a bona fide occupational qualification ("BFOQ"). The Commission construes the BFOQ exception very narrowly, and requires the person accused of discrimination to prove by a preponderance of the evidence that (1) the essence of the business operation requires the discriminatory practice and (2) there was a factual basis for the belief that all or substantially all persons in the excluded category would be unable to perform the job in a safe or efficient manner.

B. The following are examples of cases that do not warrant application of the BFOQ qualification exception, and will be considered unlawful employment practices.

(1) Refusal to select an individual for a position based on assumptions about comparative employment characteristics between protected classes. Examples include, but are not limited to, assumptions that: females are incapable of aggressive sales techniques; people over 40 years of age are too hard to retrain; or persons with physical or mental disabilities cannot perform high-level work. Selection must be based upon the individual's capacities, not on stereotyped characterizations.

(2) Refusal to select an individual because of the preferences of coworkers, the employer, clients or customers. An example is the assertion that customers will be uncomfortable with a transgender salesperson, or that a person for whom English is not their primary language will be too difficult for others to understand.

(3) Refusal to hire a person for a position based on the fear that pregnancy or pregnancy-related conditions may in the future render them unable to work, or the belief that persons with children should not work or are less reliable employees.

C. The following situations are recognized as those in which a distinction based on protected class is a bona fide occupational qualification.

(1) Where it is necessary for the purpose of authenticity or genuineness, e.g., an actor or actress.

(2) The requirement by a religious corporation or association, not organized for private profit and in fact not conducted for private profit, that certain of its employees be members of that religious faith. For example, a requirement that a Rabbi be Jewish or that a member of a Roman Catholic religious order be a Roman Catholic is valid.

(3) The requirement by an employer, subject to a statute of the United States, an Executive Order of the President, or a valid regulation of a department of the Executive Branch of the Federal Government, imposed in the interests of national security, that its employees be citizens of the United States.

2. Religious entities

A. This chapter does not prohibit a religious corporation, association, educational institution or society from giving preference in employment to individuals of its same religion to perform work connected with the carrying on by the corporation, association, educational institution or society of its activities.

B. Under this chapter, a religious organization may require that all applicants and employees conform to the religious tenets of that organization.

C. Notwithstanding any other provision in this subsection, a religious entity may not discriminate against a qualified individual with a physical or mental disability, who satisfies the permitted religious criteria, on the basis of his or her physical or mental disability.

D. With respect to discrimination on the basis of sexual orientation or gender identity, the exception provided by the Act does not apply to any religious corporation, association, educational institution or society that receives public funds or is a for-profit organization owned, controlled, or operated by a religious association or corporation and subject to the provisions of the Internal Revenue Code, 26 U.S.C. § 511(a).

3. Defenses relating to claims of physical or mental disability discrimination

A. Charges of discriminatory application of selection criteria-

(1) In general. It may be a defense to a charge of discrimination, as described in § 13(1)(G) of this chapter, that an alleged application of qualification standards, tests, or selection criteria that screens out or tends to screen out or otherwise denies a job or benefit to an individual with a physical or mental disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required in this chapter.

(2) Direct threat as a qualification standard. The term "qualification standard" may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. (See §2(3) of this chapter defining direct threat.)

B. Other disparate impact charges. It may be a defense to a charge of discrimination brought under this chapter that a uniformly applied standard, criterion, or policy has a disparate impact on an individual with a physical or mental disability or a class of individuals with physical or mental disabilities that the challenged standard, criterion or policy has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required in this chapter.

C. Charges of not making reasonable accommodation. It may be a defense to a charge of discrimination, as described in § 13(1)(F) of this chapter, that a requested or necessary accommodation would impose an undue hardship on the operation of the covered entity's business.

D. Conflict with Federal laws. It may be a defense to a charge of discrimination under this chapter that a challenged action is required or necessitated by a Federal law or regulation, or that a Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this chapter.

E. Additional defenses. It may be a defense to a charge of discrimination under this chapter that the alleged discriminatory action is specifically permitted by § 13(3) or § 21 of this chapter.

F. This chapter does not prohibit an employer from discharging or refusing to hire an individual with physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an individual with physical or mental disability, if the individual, because of the physical or mental disability, is unable to perform the duties or to perform the duties in a manner that would not endanger the health or safety of the individual or others.

In deciding whether to hire, discharge or otherwise change the status or job description of a physically or mentally disabled applicant or employee, the employer shall use an objective standard. The employer shall not make the decision based upon general assumptions or stereotypes as to whether a particular physical or mental disability would interfere with the applicant's or employee's ability to safely perform the duties of the job.

Notes

94-348 C.M.R. ch. 3, § 21