While each discrimination statute has its own set of

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: while each discrimination statute has its own set of defenses, there is some level of commonality among employer defenses a. business necessity : this is a broad defense to employment discrimination, and is used when a business can justify discrimination on the basis that it is legitimately necessary to the business operations of the company (e.g. accounting degree for an accounting firm) 1. business necessity is usually more appropriate to a disparate impact discrimination claim b. bona fide occupation qualification : federal antidiscrimination statutes allow employers to hire and employ on the basis of religion, gender, or national origin in certain instances where the classification is a BFOQ that is reasonably necessary to the normal operation of that particular business or enterprise (e.g. employment of clergy or using gender to hire movie actors) 1. in BFOQ cases that are less clear, the employer must prove that members of the excluded class cannot safely and effectively perform essential job duties
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Landmark Case 13.4: Diaz v. Pan Am. World Airlines, Inc. (p. 387) Facts: Diaz was denied a job as a flight attendant with Pan American Airlines because the airline had a policy that only a woman could be hired as a flight attendant. Diaz filed a complaint with EEOC alleging that Pan Am’s policy was a violation of Title VII because he faced hiring discrimination based on his gender. Pan Am argued that gender was a bona fide occupational qualification (BFOQ) for the position because expert studies had determined that women were better in non-technical aspects of the job such as reassuring anxious passengers. Issue: Is customer preference and non-technical aspects a legitimate part of Pan Am’s BFOQ defense? Ruling: No. The court rejected Pan Am’s arguments and ruled that the EEOC guidelines require that BFOQ defenses based on gender be interpreted narrowly. In this case, the court held that Pan Am’s assertion that women were better in non-technical aspects of the job may be important, but are not directly relevant in a BFOQ analysis. Similarly, the court also ruled that customer preference for a certain gender is not consistent with EEOC’s guidelines. Case Questions : 1. If customers truly overwhelmingly prefer one gender over another in certain jobs, is it fair or appropriate to force the public to be uncomfortable or unhappy in order to prevent sexual discrimination? 2. Why did the court decide that sex was not a BFOQ to qualify as a flight attendant? 3. Would the decision be the same if, instead of sex, the BFOQ was based on race, national origin, or religion? Why or why not? 4. Whether sex discrimination can be a BFOQ is interpreted narrowly by the EEOC, whose guidelines were adopted by the circuit court. Identify situations in which sex could be defended successfully as a BFOQ.
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  • Spring '09
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