Restrictions on Job Qualifications

April 13, 2006

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If you have 15 or more employees and if the selection criteria you use tend to screen out members of a protected group (i.e., by race, color, ethnicity, national origin, religion, gender, age (over 40), disability, or veteran status), you may expect to run afoul of the federal Equal Employment Opportunity Commission. In order for qualifications like that to be legal, they must be job-related and necessary for the employer's business.

What constitutes a business necessity? The concept of business necessity has been narrowly defined by the courts. When a practice is found to have discriminatory effects, it can be justified only by showing:

that it is necessary to the safe and efficient operation of the business
that it effectively carries out the purpose it is supposed to serve
that there are no alternative policies or practices that would better or equally serve the same purpose with less discriminatory impact

You must be able to demonstrate that any job qualification, recruitment method, or selection procedure that has a "disparate impact" on groups protected by the law is job-related and that it can validly predict successful performance in the type of job in question. Disparate impact occurs when a policy that is fair and is applied fairly ends up discriminating against one or more protected classes of individuals.

A movie theater operator required that all of its employees who had contact with the public be bilingual in English and Spanish. African-American applicants alleged that the bilingual requirement had an adverse impact on African-American applicants and employees.

The employer was able to defend its bilingual requirement as a business necessity since it was located in a community that was primarily Hispanic and the majority of its customers spoke only Spanish.

If you can't demonstrate the business necessity, you must stop using that procedure or method or alter it in such a way that it is no longer discriminatory. Even if you can demonstrate that a procedure, requirement, or method is valid, you can't use it if there are other procedures, requirements, or methods that would accomplish the same goal and have less of a discriminatory effect.