United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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The contractor is obligated to have scheduled reviews of job qualifications to determine which are required for job performance, business necessity or safe performance of the job. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary for Employment Standards Dec. and Order, February 26, 1979, slip op. at 19, aff'd, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The business necessity defense was proven by showing that the creation of a suitable accommodation would disrupt normal operations, violate defendant's collective bargaining agreement, and disrupt its relationship with the union and its employees. OFCCP v. American Airlines, 79-OFCCP-2, ALJ Rec. Dec., June 30, 1980, slip op. at 14, aff'd, Deputy Under Secretary for Employment Standards, May 2, 1985.

The regulations place the burden of proof as to business necessity on the defendant. E.E. Black, Ltd. v. Donovan, No. 79-0132, 26 FEP 1183, 1184 (D. Hi. 1981).

The business necessity exception will be allowed only if the exceptions are limited to instances in which individual capacity is in some vital respect not feasible to determine and other factors render the disqualification of some actually qualified persons of less importance under public policy than the placement of some underqualified persons in the occupation or position in question. OFCCP v. Southern Pacific Transportation Co., 79-OFC- 10A, ALJ Rec. Dec. and Order, November 9, 1982, slip op. at 51; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

One general requirement of the business necessity exception is that a factual basis must exist for believing that generally all or substantially all members of the discriminatee class would be unable to perform the duties. Id. at slip op. at 52; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

A requirement of business necessity is that the avoidance of the particular deficiency against which the qualification requirement is aimed must be of extremely high and crucial importance. Id. at slip op. at 53; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The standard for determining the interaction of the business necessity factors consists of a comparative analysis of the impact on employment opportunities, national productivity and public safety. Where the public safety risk is very high, the other two considerations must yield; where it is not, they prevail. Id. at 59; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

If the defendant admits that its decision to terminate the complainant's employment was based on a handicapping condition, the defendant has the burden of proving that its discriminatory action is consistent with business necessity and the safe performance of the duties of the complainant's job. OFCCP v. American Commercial Barge Line, 84-OFC-13, ALJ Rec. Dec., September 30, 1986, slip op. at 21, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

Employer must establish that a substantial correlation exists between safety and its exclusion of the complainant from employment. Id. at 31.

The Act does not proscribe preemployment physical examinations and it does not prohibit the use of the results of such examinations to exclude from employment qualified handicapped individuals. However, if physical requirements exclude such persons from employment, these requirements must be consistent with business necessity and safe job performance. OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, ALJ Rec. Dec., September 30, 1986, slip op. at 17; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Once plaintiff has established a prima facie claim, the burden of proof shifts to the defendant who may rebut this inference by showing that the physical requirement is job related and consistent with business necessity and safe job performance or by showing that the decision was based on prior poor performance. Id. at 17-18; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent

Decree, January 31, 1994.

When the plaintiff has demonstrated that the defendant has used physical job qualifications that tend to screen out qualified handicapped individuals, the defendant has the burden of proving that its job qualifications are "directly connected with, and

. . . substantially promote business necessity and safe performance." OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 18, citing Bentivegna v. U.S.Department of Labor, 694 F.2d 619, 622 (9th Cir. 1982) and E.E. Black v. Marshall, 497 F. Supp. 1088, 1103 (D. Hi. 1980); Consent Decree, December 10, 1991.

Defendant's evidence that there is a possibility that persons with radiographic spinal anomalies will develop future chronic back problems was not sufficient to meet its burden of showing that its job qualifications, which required rejecting all applicants with those conditions, were job related and consistent with business necessity and safe performance. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 19; Consent Decree, December 10, 1991.

Where an employer's policy mandates restrictions on all epileptics, that policy presupposes that all epileptics pose some risk to themselves and/or others because of their potential for a seizure. PPG can not show a business necessity for excluding all epileptics from the production laborer job. OFCCP v. PPG Industries, Inc., 86-OFC-9, ALJ Rec. Dec., May 17, 1988, slip op. at 27-28, aff'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Decision and Remand Order on Remedy, January 9, 1989, dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The fundamental issue here is the same as in Texas Industries, whether defendant's decision to reject an applicant with epilepsy was justified because there was a "reasonable probability of substantial harm" posed by his handicap. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989 slip op. at 16, dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The defendant did not show that its rejection of the complainant, based on the discovery of a congenital back defect and prior back surgery, was anything more than remotely consistent with business necessity and the safe performance of the job at issue. OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards, June 7, 1988, slip op. at 25, rev'g, ALJ Rec. Dec., June 10, 1981, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991; remended on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The employer's medical testimony that the complainant, who suffered from a congenital back deformity, was more likely than someone with a perfect back to experience sudden back pain which could result in injury did not rise to the level of showing that her rejection substantially promoted business necessity and the safe performance of the job. Id. at 24, rev'g, ALJ Rec. Dec., June 10, 1981, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991; remended on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Defendant's claim of business necessity failed as to some complainants because the record did not contain substantial evidence that those complainants, because of their back conditions, presented an unacceptable risk in terms of damaging defendant's trucks or the freight in the defendant's custody. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 65, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The DOT regulations do not provide the contractor with an absolute BFOQ defense. If the DOT had prescribed as a specific qualification that a driver applicant not have certain back conditions, and Yellow Freight had disqualified complainants upon x-ray evidence of such conditions, then Yellow Freight would have a complete defense based on the DOT regulations alone. However, the de facto requirement that the back conditions at issue not be present was Yellow Freight's, not DOT's. Id. at 55.

Under Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985), the burden is on plaintiff to establish, as part of the prima facie case, the existence of an impairment that substantially limits a major life activity. The burden then shifts to defendant employer to demonstrate that challenged criteria are job related and required by business necessity, and that reasonable accommodation is not possible. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, ALJ Rec. Dec. and Order, January 29, 1990, slip op. at 9 and 12, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Although a job requirement resting on mere expediency or preference does not substitute for business necessity, a job requirement directly tied to increased risk of injury might be held non-discriminatory if applied to applicants for a job that carries elevated risks of injury. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 9, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor's methods of identifying applicants who would create a reasonable probability of substantial harm are grounded upon a business necessity, and not mere preference, where contractor demonstrated that there is a rational relationship between such screening out methods and the subject job functions and conditions in the context of the contractor's business. The disqualifying conditions, back problems, vision and hearing impairments, hypertension and epilepsy, substantially promote business necessity and safe performance of the jobs and are clearly related to the jobs. Id. at 14, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor was "within its rights" in seeking more detailed medical records from a manic depressive employee to enable contractor to make an employment decision consistent with business necessity and the safe performance of the job. OFCCP v. American Commercial Barge Line Co., 84-OFC-13, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Order, April 15, 1992, slip op. at 12-13.

It was the contractor's burden to prove that employee's inability to stoop and bend is so essential to his work to be deemed a bona fide occupational qualification or a business necessity for all jobs in employee's job classification and that contractor was thereby unable in good faith to accommodate employee's limitations. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 14, affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

A contractor may impose "qualification requirements" on employees even if they tend to "screen out" qualified handicapped individuals, provided that the requirements are job related, consistent with business necessity and the safe performance of the job. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions; contractor had a legal right to demand that complainant meet requirements such as obtaining the release to ensure that he could safely return to the admitted hazardous conditions in the plant. Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 19-20.

When a contractor implements job qualifications which tend to screen out qualified handicapped individuals, the contractor has the burden of showing that the requirements are related to the job and are consistent with business necessity and the safe performance of the job. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 22; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11.

Business necessity and financial cost are among the factors to be considered in determining whether an accommodation imposes undue hardship. Id. at 31; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Once it is determined that complainant is a qualified handicapped individual, the next inquiry is whether the contractor's job qualifications tend to screen out handicapped individuals, and if they do, the contractor must demonstrate that the requirements are job-related and are consistent with business necessity and the safe performance of the job. Id. at 32; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996,at 11.

Contractor failed to establish that its blanket exclusion of recovering alcoholics and people with a history of drug abuse from designated positions is consistent with business necessity and the safe performance of the job. Id. at 32-38; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11.

Contractor failed to establish that its former drug and alcohol policy, which did not automatically exclude recovering alcoholics from safety sensitive positions, was insufficient to prevent risk of injury in those jobs. In the absence of evidence that the former policy was ineffective, contractor's across-the-board exclusion of recovering alcoholics from safety sensitive jobs cannot be found to be reasonable, or consistent with business necessity and safe performance of the job. Id. at 35; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Where a contractor applies physical or mental job qualification requirements which tend to screen out qualified handicapped individuals, the job requirements must be related and consistent with business necessity and safe performance of the job. The contractor has the burden of demonstrating compliance with this standard. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 11; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary rejected Commonwealth's contention that it excluded the complainant, who had a correctable hearing loss, for business necessity and safety reasons, because Commonwealth simultaneously employed two other individuals with uncorrectable hearing losses. Inasmuch as there was no apparent reason for differentiating correctable and uncorrectable hearing loss with regard to job relatedness or safety concerns, the Assistant Secretary held that Commonwealth violated Section 503 when it refused to hire the complainant unless he had his hearing surgically corrected. Id. at 16; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary rejected the contractor's business necessity defense that to employ a complainant with a correctable hearing loss involved possible future medical liability if the individual elects to correct the condition. The Assistant Secretary relied in part on an Equal Employment Opportunity Commission (EEOC) regulation stating that, "The determination of whether an individual with a disability is qualified [should] not be based on speculation that the employee [may] cause increased health insurance premiums . . . " Furthermore, increased cost to an employer, is not a valid reason for rejecting a handicapped applicant. Id. at 16, n.9; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Job qualifications, [which included radiographic evidence of a back abnormality], which the defendant claims were job related, and consistent with business necessity and safe job performance, must be examined with care, where as applied they essentially screen out the complainant because of an increased risk of injury. Id. at 18; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Contractors must make reasonable accommodation to the physical limitations of an employee unless the contractor can demonstrate that the accommodation would impose an undue hardship on the conduct of the contractor's business. One factor that can be considered in making that demonstration is business necessity. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 7; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell's attempts to satisfy its burden failed to satisfy the regulatory requirements. Cissell insisted that each of its employees must be available to perform any job in the department to which they are assigned because Cissell is a "job shop" which required that "employees were frequently moved between positions to meet the requirements of the work flow." Cissell also asserted that every job in the welding and spot welding departments "require[s] some stooping or bending." Id. at 8; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell had not shown that within the job classifications of spot welder or production welder it would have imposed an undue hardship for the company to assign the complainant jobs not requiring constant bending and stooping. Id. at 12; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell failed to demonstrate how accommodating the complainant would interfere with the rights of other employees under the collective bargaining agreement. The company did not point out anything in the union contract giving any employee a right to any particular job within a job classification, nor did it consult with the union. Thus, Cissell's concern that accommodating the complainant would cause problems in its relationship with the union was speculative and not sufficient to meet its burden under 41 C.F.R. § 60-741.6(d) to show undue hardship. Id. at 13-14; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The ARB reaffirmed the likelihood, imminence and severity of injury as pertinent considerations for assessing the reasonable probability of substantial harm. The ARB held that Exxon's 1989 Drug and Alcohol Policy excludes from positions designated safety-critical any employee who has undergone treatment for alcoholism, thereby establishing a job requirement that screens out qualified individuals with disabilities. Accordingly, Exxon also must demonstrate that the requirement is job-related and consistent with business necessity and safe job performance. 41 CFR § 60-741.6(c). OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 11.