However, many employers have successfully used business advocacy. In Spurlock v. United Airlines, a minority candidate sued United Airlines, stating that their requirements that pilot candidates owe 500 flight hours and college degrees are unfairly discriminatory. The court agreed that the requirements had a negative impact on the person`s minority group members. However, she noted that, given the cost of the training program and the enormous human and economic risks associated with hiring unqualified candidates, selection standards are a business necessity and are employment-related. 1) First, good intentions are no excuse. As the Supreme Court noted in Griggs, good intent or lack of discriminatory intent does not replace testing procedures or mechanisms that function as integrated headwinds for minority groups and have nothing to do with measuring capacity to work. (2) Secondly, one cannot hide behind collective agreements (e.g. by claiming that the discriminatory practice is prescribed in a trade union agreement). Courts have often held that employment equality laws take precedence over rights enshrined in an employment contract, 3) Third, while a strong defense is often the reasonable answer to a charge of discrimination, it is not the only answer. If the employer is faced with the fact that one or more of its personnel practices are discriminatory, it can respond by agreeing to eliminate the illegal practice and (if necessary) compensate those discriminated against.
— Another area where the use of commercial necessities may lead to the unjustified rejection of candidates is the recruitment of qualified candidates with a criminal record. Even if the applicant has been rehabilitated, most companies have great difficulty hiring someone with a criminal record. Once the company has conducted a background check and discovered the record, such a candidate may not have a chance of getting gainful employment. Not only is this unfair, but it also makes it difficult for these people to earn an honest living, sometimes leading them to return to a criminal life. The question that arises in commercial necessity is its application by some unscrupulous employers who may hide behind the mantle of corporate demand to discriminate against certain candidates. For example, a company could unfairly discriminate against skilled immigrants who are not fluent in English. For such employers, it does not matter whether the immigrant has the skills and qualifications required for the job. If the immigrant does not fit the corporate culture or image of the company, such a person will not be employed. A company looking for a security guard may disqualify all partially disabled applicants simply because they are looking for someone who is able to meet the requirements of the job. Commercial necessity practices are prevalent today.
Here are some examples of hiring practices that could be protected by the need for the business: When it comes to pre-employment testing, employers should only use tests that look for job-related skills that meet the needs of the business. For example, if a company hires hairdressers, it would be inconsistent with the company`s need to run a Microsoft Excel test on candidates, unless the company can prove that Excel skills are required to perform the task. In this case, a candidate`s ability to use Excel competently would not be job-related or compatible with the needs of the company and is therefore not legally justifiable. The definition of commercial necessity refers to the legal term used to justify an employer`s employment criteria that disproportionately affect a group of people. The justification lies in the possibility that an enterprise has legitimate reasons for engaging in such restrictive employment practices. To demonstrate commercial necessity, companies must provide strong evidence that the exclusion criteria are closely related to job performance and do not have different effects. The commercial necessity rule stems from Griggs v. Duke Power Co., a Supreme Court case. Of course, very few employers will intentionally use the needs of the company for discrimination. To best avoid accidental discrimination, HR professionals should be able to answer the questions listed above and prove that their company`s hiring practices are in no way discriminatory. It can also help write down the company`s hiring practices and incorporate rules and procedures that prevent discrimination into the hiring process.
Other considerations in objections to discriminatory practice: The claim of commercial necessity may also be invoked in a situation where one company places one sex above another. For example, a company that operates in the entertainment industry, such as a casino, may prefer to hire men in a limited number of positions. They may prefer to employ mostly attractive women to serve as hostesses, dealers at blackjack tables, and other types of roles. This could be a reason for a lawsuit for discrimination by women who do not meet their criteria or definition of attractiveness, as well as by men who may feel marginalized. Employers try to demonstrate that their selection tests or other employment practices are valid as an example of defending the needs of the business. Here, the employer must prove that the test or other practice is employment-related – in other words, that it is a valid predictor of workplace performance. If the employer can demonstrate such validity, the courts have generally supported the use of the test or other employment practice as a business necessity. In this context, validity refers to the extent to which the test or other employment practice is linked to or predicts performance in the workplace. It is not easy to prove the necessity of the company. The Supreme Court clarified that commercial necessity does not include avoiding inconvenience, inconvenience or cost to the employer.
For example, an employer generally cannot fire employees whose wages have been garnished simply because garnishment (which requires the employer to redirect a portion of the person`s wages to pay their debts) creates an inconvenience. The Court of Appeals for the Second Circuit ruled that commercial necessity means an irresistible demand and that, to be enforced, the practice must not only directly promote safety and efficiency, but must also be essential to achieving those goals. In addition, the commercial objective must be sufficiently binding to outweigh all racial impacts. Business necessity is a legal term that can be used to justify an employer`s decision to use employment criteria that disproportionately affect a particular group assuming that the company has a legitimate reason to do so based on the needs of the business. Although the Equal Employment Opportunity Commission (EEOC) generally prohibits the use of hiring criteria with different effects, these types of hiring criteria are allowed if they are found to be „employment-related and consistent with the needs of the company.” In other words, companies must be able to demonstrate that the criteria they use are necessary for the proper functioning of their activities.