Title VII is a key federal law that provides special defenses for defendants accused of involvement with discriminatory conduct, acts, or practices despite protecting employees against workplace discrimination, harassment, and retaliation. In law, a special defense implies a legal reason regarding why a defendant should not be found responsible and, accordingly, liable for an allegation. While the task of proving them is the defendant’s responsibility, special defenses may be raised in response to allegations by a complainant or plaintiff. Notably, a defendant may submit multiple defenses, which the plaintiff must respond to in a reply to special defenses pleading.

Just like the Human Rights Law of the New York State, as discussed in our blog accessible through https://milettilaw.com/new-york-state-human-rights-law-nyshrl-special-defenses/, Title VII has several exemptions and special defenses, which include, but are not limited to:

  1. Faragher-Ellerth Harassment Defense

The popular Faragher-Ellerth defense was born out of two landmark opinions provided by the Supreme Court of the United States. Generally, the Faragher-Ellerth defense was created by the Supreme Court with the aim of providing employers with a way to defend themselves against vicarious liability (a legal provision through which an employer (company or individual) is held responsible and liable for the conduct and behavior of their employees or others) arising from claims of sexual harassment against a supervisory employee.

As the court ruled (See Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 763 (1998)), this harassment defense applies where (1) the employer did involve itself in a tangible employment action against the employee, (2) the employee, in order to avoid harm, did not make use of corrective or preventative opportunities that the employer provided, and (3) the employer exercised reasonable care in preventing and promptly correcting any behavior constituting sexual harassment.

  1. Good Faith Defense

Pursuant to 42 U.S.C. § 2000e-12(b), this defense concerns a situation where an employer shows that it depended in good faith on the opinions and interpretations of the Equal Employment Opportunity Commission (EEOC).

  1. Mixed Motive Defense

Pursuant to 42 U.S.C. § 2000e-5(g)(2)(B), by showing, through a preponderance of the evidence, that, in the absence of a discriminatory motive, it would have taken the same action, this defense permits an employer to escape punitive damages and liability for back pay.

  1. Equal Pay Act (EPA)

Pursuant to 42 U.S.C. § 2000e-2(h), if it is authorized under 29 U.S.C. 206(d), an employer is allowed to, when setting compensation or wages, to differentiate based on the sex of employees.

  1. Professionally Developed Ability Test

Pursuant to 42 U.S.C. § 2000e-2(h), this defense concerns where an employer provides and utilizes the outcome(s) of any professionally developed ability test, provided that the test, how it was administered, or the action taken upon its outcome(s) are not intended, used, or designed to discriminate individual or participants on the bases of national origin, sex, religion, color, or race.

  1. Foreign Law Exemption

Pursuant to 42 U.S.C. § 2000e-1(c)(2), as long as a foreign employer is not under the control of an American employer, then Title VII is not applicable to the foreign business/activities of such a foreign employer.

  1. National Security Defense

Pursuant to 42 U.S.C. § 2000e-2(g), if the access to the premises where a job is performed or the job itself is subject to a legal requirement, enforced as a matter of concern for the United States national security, but which the affected person does not meet, an employer is allowed to execute an otherwise discriminatory adverse action against such a person.

  1. Bona Fide Seniority System

Pursuant to 42 U.S.C. § 2000e-2(h), unless such a system is utilized with the intention of discriminating based on a protected attribute, class, or category, then a system by which earnings are measured through the quality or quantity of production is allowed.

  1. Business Necessity Defense

Pursuant to 29 C.F.R. § 1630.15(b), this defense applies where the job-related discriminatory conduct/acts align with business necessity.

  1. Bona Fide Occupational Qualification Defense

Pursuant to 29 C.F.R. § 1606.4, if the specific characteristic is considered to be a bona fide occupational qualification reasonably critical and imperative to the regular running of the employer’s business, then the employer is permitted to undertake discriminatory practices based on religion, sex, or national origin. However, the exception for the third attribute is strictly construed.

  1. Affirmative Action Plan Exemption

As the court ruled (See United Steelworkers v. Weber, 443 U.S. 193, 207-08 (1979)), this defense concerns where, in an attempt to remedy past discrimination, voluntary affirmative action plans have been implemented, within the limits of the law, by an employer.

  1. Undue Hardship Defense

As ruled by the court (See TWA v. Hardison, 432 U.S. 63, 75 (1977); 42 U.S.C. § 2000e(j)), this defense applies where an employer’s business would have to incur undue hardship if an employee is provided with a requested religious accommodation.

  1. Kolstad Good Faith Defense

Pursuant to Kolstad v. ADA, 527 U.S. 526, 544 (1999), an employer may defend itself against the imposition of punitive damages if it can demonstrate good faith effort in complying with anti-discrimination laws.

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Isaac T.,

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