§ 11010. Affirmative Defenses to Employment Discrimination.

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 Defenses:”

(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 cases.

(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.

(e) 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 12990; or

(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.

HISTORY

1. Change without regulatory effect renumbering former section 7286.7 to new section 11010 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).

Note

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12940, 12941, 12942, 12961 and 12990, Government Code.