EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
TITLE VII AND ADA: HIRING/JOB REQUIREMENTS/JOB DESCRIPTIONS
June 21, 2005
This is in response to your May 19, 2005 letter addressed to the Office of Legal Counsel, U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”), in which you requested guidance on the type of information that should and should not be included in employee job descriptions. You also provided further guidance as to the scope of your request in a phone call initiated by one of our attorneys on May 25, 2005.
The EEOC is responsible for enforcing federal equal employment opportunity (EEO) laws, including Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d); the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; sections 501 and 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791 and 794a; and Titles I and V of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.. For advice or guidance on EEO requirements for educational programs that receive federal financial assistance, contact the United States Department of Education at 1-800-USA-LEARN. For advice or guidance on federal labor laws other than EEO, contact the United States Department of Labor at 1-866-4-USA-DOL.
Job descriptions, properly prepared, can support the goal of eradicating unlawful employment discrimination. Racial requirements are never lawful in job descriptions and should not be used under any circumstances. Job requirements based on an employee’s gender, national origin, religion or age can be used in very limited circumstances. Job requirements based on these protected characteristics are lawful only when an employer can demonstrate that they are bona fide occupational qualifications ("BFOQs") reasonably necessary to the normal operation of business. 42 U.S.C. § 2000e-2(e)(1); 29 U.S.C. § 623(f)(1). Otherwise stated, if a job description includes a requirement based on employee’s gender, national origin, religion, or age, all or substantially all of the individuals excluded from the requirement must be unable to safely and effectively perform the job duties which are reasonably necessary to the safe and efficient operation of the business. See UAW v. Johnson Controls, 111 S.Ct. 1196, 1204-05 (1991).
The Supreme Court interprets the scope of the BFOQ defense narrowly, Dothard v. Rawlinson, 97 S.Ct. 2720, 2729 (1977), and traditionally, it has been difficult for employers to establish a BFOQ. Nonetheless, an employer in an educational setting might be able to identify specific positions as to which a court might allow use of the BFOQ defense to limit persons eligible for the positions to a discrete protected group. For example, a requirement for a female school counselor for girls who survived sexual abuse may be a lawful BFOQ. If a school employed such a counselor specifically to facilitate a small support group for female sexual abuse victims, then most if not all men would not be suitable to provide a small group setting in which all the girls would feel free to speak openly about their experiences. In this example, an employer may include in the job description a requirement that this specialized school counselor be female.
Furthermore, the Commission encourages employers to carefully assess whether their job requirements or duties, although neutral or evenly applied, indirectly impact employees based on their protected characteristics. If an adverse impact exists based on an employee’s race, sex, color, national origin or religion, then the particular job requirement or duty should only be included in the job description if it is job-related, consistent with business necessity and the least discriminatory alternative available. 42 U.S.C. § 2000e-2(k)(1)(A)-(C). Job-related requirements or duties have a proven relationship to employees’ performance on the job. EEOC Compliance Manual § 604.7(b). In addition, a requirement or duty is a business necessity when it is needed for the “safe and efficient operation of the business.” Burwell v. Eastern Airlines, Inc., 633 F.2d 361, 370-71 (4th Cir. 1980).
Job requirements and duties that adversely impact employees based on a disability should also be job-related and consistent with a business necessity. 42 U.S.C. § 12113(a). Additionally, if an employer wishes to include a job requirement in a job description that negatively affects employees based on their age, the requirement should be reasonable. 29 U.S.C. § 623(f)(1); Smith v. City of Jackson, 125 S.Ct. 1536, 1545 (2005).
In addition, employers should explicitly divide job requirements into the major and minor functions of the position. Under Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §12112, covered employers must provide reasonable accommodations to enable otherwise qualified individuals with disabilities to perform their essential job functions. Job functions are essential if they are necessary to accomplish the central purpose of the position. For example, it is essential that a high school English teacher understand the state curriculum guide for English language and literature. By contrast, marginal functions are infrequently performed and are not key to the overall purpose of the position. A middle school math teacher who informally tutors a student in science during lunch would be engaged in a minor task for his/her teaching position. Under the ADA, covered employers are not required to provide reasonable accommodations with respect to marginal functions, although the employer may transfer the marginal function to another employee in exchange for a function that can be performed by the individual with a disability. See generally Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, available at http://www.eeoc.gov/policy/docs/accommodation.html.
Employers should also be careful to focus on the major or minor functions of a position as opposed to recommended methods of performance when more than one acceptable method exists. For example, a job description that includes a requirement to “lift” up to 70 pounds of equipment could be restated as a requirement to “move” up to 70 pounds of equipment. The basic function to be accomplished is the transport of the equipment. The revised description communicates this basic function and does not exclude individuals with disabilities who could only move items with a reasonable accommodation like a cart or a dolly.
Although useful, employers are not required to compose job descriptions. Yet, to the extent they are developed, they should not be discriminatory. Also, employers must preserve records of job descriptions made in the regular course of business for a two-year period. 29 C.F.R. § 1620.32(b)-(c).
We hope that this information is helpful to you. Please note that this is an informal discussion of the issues you raised and does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission. If you have additional questions or require further guidance please contact Edana Lewis at (202) 663-4758 or Carol Miaskoff at (202) 663-4645.
Carol R. Miaskoff
Assistant Legal Counsel
This page was last modified on April 27, 2007.
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