Code of Maine Rules › 94 - INDEPENDENT AGENCIES › 348 - MAINE HUMAN RIGHTS COMMISSION › Chapter 3 - EMPLOYMENT REGULATIONS of the MAINE HUMAN RIGHTS COMMISSION › Section 348-3-21 - DEFENSES

Current through 2024-29, July 17, 2024
Defenses to an allegation of discrimination under this
				  chapter or the Act may include, but are not limited to, the following:
1.
Bona fide occupational
				qualification
A. It is a defense to
				unlawful employment discrimination under this chapter and the Act when such
				discrimination is based on a bona fide occupational qualification ("BFOQ"). The
				Commission construes the BFOQ exception very narrowly, and requires the person
				accused of discrimination to prove by a preponderance of the evidence that (1)
				the essence of the business operation requires the discriminatory practice and
				(2) there was a factual basis for the belief that all or substantially all
				persons in the excluded category would be unable to perform the job in a safe
				or efficient manner.
B. The
				following are examples of cases that do not warrant application of the BFOQ
				qualification exception, and will be considered unlawful employment practices.
(1) Refusal to select an individual for a
				position based on assumptions about comparative employment characteristics
				between protected classes. Examples include, but are not limited to,
				assumptions that: females are incapable of aggressive sales techniques; people
				over 40 years of age are too hard to retrain; or persons with physical or
				mental disabilities cannot perform high-level work. Selection must be based
				upon the individual's capacities, not on stereotyped
				characterizations.
(2) Refusal to
				select an individual because of the preferences of coworkers, the employer,
				clients or customers. An example is the assertion that customers will be
				uncomfortable with a transgender salesperson, or that a person for whom English
				is not their primary language will be too difficult for others to
				understand.
(3) Refusal to hire a
				person for a position based on the fear that pregnancy or pregnancy-related
				conditions may in the future render them unable to work, or the belief that
				persons with children should not work or are less reliable employees.
C. The following situations are
				recognized as those in which a distinction based on protected class is a bona
				fide occupational qualification.
(1) Where it
				is necessary for the purpose of authenticity or genuineness, e.g., an actor or
				actress.
(2) The requirement by a
				religious corporation or association, not organized for private profit and in
				fact not conducted for private profit, that certain of its employees be members
				of that religious faith. For example, a requirement that a Rabbi be Jewish or
				that a member of a Roman Catholic religious order be a Roman Catholic is
				valid.
(3) The requirement by an
				employer, subject to a statute of the United States, an Executive Order of the
				President, or a valid regulation of a department of the Executive Branch of the
				Federal Government, imposed in the interests of national security, that its
				employees be citizens of the United States.