Defending against allegations of workplace discrimination presents a variety of challenges for South Carolina employers. When faced with allegations of discrimination based on race, sex, age, or any other protected characteristic, employers must take the allegations seriously, and they must promptly determine what defensive measures are necessary.

5 Potential Defenses to Allegations of Workplace Discrimination in South Carolina

We recently published an article discussing seven important steps to take in response to allegations of discrimination in the workplace. In that article, we mentioned five defenses that employers can assert in many cases:

  • Bonafide occupational qualification
  • Employee job performance
  • Breach of contract
  • Legally-compliant seniority system
  • Impermissible delay in notification

Here is an overview of each of these defenses in a bit greater detail:

1. Bona Fide Occupational Qualification (BFOQ)

The bona fide occupational qualification (BFOQ) defense exists under Section 703(e)(1) of Title VII. As the U.S. Equal Employment Opportunity Commission (EEOC) explains, the BFOQ exception “recognizes that in some extremely rare instances a person’s sex, religion, or national origin may be reasonably necessary to carrying out a particular job function in the normal operation of an employer’s business or enterprise.”

The BFOQ defense only applies to certain protected characteristics (sex, religion, and national origin). To assert this defense, an employer must demonstrate that a BFOQ was legitimately the basis for a decision that harmed the complaining employee. In other words, an employer cannot rely on a purported BFOQ as a pretext for the discriminatory employment action.

The courts examine employers’ assertion of the BFOQ defense on a case-by-case basis. For example, while refusals to hire based on the preferences of clients or customers regarding interactions with employees of particular sex generally will not qualify for the BFOQ defense, if an employer has “a factual basis for believing that all or substantially all [employees of a particular sex] would be unable to perform safely and efficiently the duties” of a particular job, then Title VII’s BFOQ exception may apply.

2. Employee Job Performance

Adverse employment action against an employee who falls into one or more protected classes is not discriminatory if the adverse employment action is based on the employee’s job performance. As with asserting the BFOQ defense, when seeking to dispute an employee’s discrimination allegations based on the employee’s job performance, documentation can be critical.

As a result, employers should ensure that they have documentation of the employee’s performance reviews, attendance rates, warnings, reprimands, and any other evidence of inadequate performance on hand. If an employee alleges discrimination and it can be clearly shown that the adverse employment action is justified based on the employee’s performance, then this can help significantly in achieving a favorable outcome for the employer. Conversely, if an employer does not have documentation of poor job performance – or only seeks to generate such documentation after the fact – this can potentially swing the dispute in the employee’s favor.

3. Breach of Contract

An employee cannot validly allege workplace discrimination if adverse employment action is based on the employee’s contract terms. This applies not only to employment contracts but potentially to confidentiality agreements and other employment-related contracts as well.

However, there is a delicate line that needs to be drawn. While employers can validly terminate employees based on contractual violations, they cannot terminate employees’ contracts for discriminatory purposes. In other words, even if a contractual termination may technically be justified, if the decision to terminate is not actually based on the contract, this can present challenges in employment discrimination litigation.

4. Legally-Compliant Seniority System

Employers are permitted to implement seniority systems under Title VII and the Age Discrimination in Employment Act (ADEA). If an employment-related decision disproportionately impacts an employee (or employees) of a certain age, this does not automatically give rise to an age discrimination claim—as long as the employer has (and follows) a legally compliant seniority system.

Under the ADEA, seniority systems must consider employees’ tenure with the company and not their age. Pre-existing documentation is critical here as well, as after-the-fact attempts to justify employment decisions based on seniority will generally be unsuccessful in refuting allegations of age-based discrimination. With that said, the EEOC has acknowledged that a seniority system “does not have to be in writing . . . to be considered bona fide . . . .”

In some cases, employees may allege that a seniority system is unlawful because it perpetuates the adverse effects of past discriminatory acts. However, the EEOC has also acknowledged that “when the effect of past discriminatory acts is perpetuated by the present operation of a bona fide system there will . . . be no finding of a Title VII violation.”

5. Impermissible Delay in Notification

To assert a claim for workplace discrimination, an employee must generally provide notice to his or her employer. He or she must do so within a timeframe that affords the employer a reasonable opportunity to remedy the alleged violation (if a remedy is possible). If an employee does not provide timely notice of his or her claim, this can potentially provide a complete defense to employer liability.

Regardless of the circumstances involved, employers must make informed decisions based on the specific facts and circumstances at hand when faced with allegations of workplace discrimination. By evaluating all potential defenses and assembling a sound and cohesive defense strategy, employers can significantly mitigate their risk of liability in EEOC proceedings and civil litigation.

Speak with a South Carolina Employment Lawyer at Gignilliat, Savitz & Bettis LLP

At Gignilliat, Savitz & Bettis LLP, our South Carolina employment lawyers represent employers of all sizes in workplace discrimination. If your company faces allegations of workplace discrimination, or if you want to take proactive steps to mitigate your company’s risk of facing these allegations, we encourage you to call 803-799-9311 or contact us online to arrange a confidential initial consultation.