Business Necessity

What is business necessity?

Business necessity is a legal defense that allows an employer to discriminate against an employee or job applicant on the basis of a particular characteristic, such as race or gender, if the characteristic is necessary for the operation of the business.

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In order to successfully use the business necessity defense, an employer must be able to show that the characteristic is genuinely necessary for the operation of the business and that there is no alternative way to achieve the same goal without discriminating.

Business necessity is often raised in employment discrimination cases, but it can also be used as a defense in other types of business disputes.

Essential features of business necessity

There are several essential features of business necessity:

1. Necessary for the operation of the business: To successfully use the business necessity defense, an employer must be able to show that the characteristic being relied upon is genuinely necessary for the operation of the business.
2. No alternative way to achieve the same goal: The employer must also be able to show that there is no alternative way to achieve the same goal without discriminating.
3. Legally protected characteristic: The business necessity defense can only be used in situations where the characteristic being relied upon is a legally protected characteristic, such as race, gender, age, or disability.
4. Relevant to the specific job or business activity: The business necessity defense can only be used in situations where the characteristic being relied upon is relevant to the specific job or business activity at issue.
5. Proportionate to the aim: The employer must be able to show that the discriminatory action is proportionate to the aim being pursued, meaning that the discriminatory action is necessary to achieve the aim and that the aim could not be achieved by less discriminatory means.

Types of business necessity

There are several different types of business necessity, including:

1. Bona Fide Occupational Qualification (BFOQ): A BFOQ is a characteristic that is necessary for the operation of the business and is related to the specific job or business activity at issue. For example, an employer may be able to discriminate on the basis of race if race is a BFOQ for the job, such as in the case of an actor being hired to play a specific race in a film.
2. Undue hardship: Undue hardship refers to situations where the cost or difficulty of accommodating a particular characteristic would be too burdensome for the employer. For example, an employer may be able to discriminate on the basis of disability if the accommodation required would cause undue hardship for the employer.
3. Seniority systems: In certain circumstances, an employer may be able to rely on a seniority system as a business necessity defense. This would involve showing that the seniority system is genuinely necessary for the operation of the business and that there is no alternative way to achieve the same goal without discriminating.
4. Affirmative action: Affirmative Action refers to the practice of actively trying to increase the representation of historically disadvantaged groups in the workplace. In certain circumstances, affirmative action may be considered a business necessity, allowing an employer to discriminate in favor of certain groups.