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Business necessity is a rule that states any requirement from a job must have a direct bearing on the performance of the job. The aim is to prevent those employers who may seek to unnecessarily exclude qualified applicants based on frivolous job requirements. Employers are not allowed to discriminate against qualified job seekers for any purpose and in order to protect themselves, they may claim business necessity as the reason why they reject some applicants. An example is a company based in the US with a lot of Chinese customers looking for a receptionist. The company may disqualify many qualified applicants based on the fact that they do not speak the Chinese language. In this case, business necessity becomes a legitimate defense for its actions.
The question that arises in business necessity is its application by some unscrupulous employers who may hide behind the cloak of business application to discriminate against certain applicants. For instance, a company might unfairly discriminate against qualified immigrants who do not speak the English language fluently. To such employers, it would not matter that the immigrant possesses the skills and qualifications required of the job. So far as the immigrant does not fit into the corporate culture or image of the company, such a person will not be employed. A company that is looking for a security guard may disqualify all partially disabled applicants simply because it is looking for someone who is able to fulfill the requirements of the job.
Another area in which the use of business necessity may lead to the unfair rejection of applicants is in the hiring of qualified applicants with criminal records. Even if the applicant has become rehabilitated, most businesses find it very hard to hire anyone who has a criminal record. Once the company perform a background check and discovers the record, such an applicant may not stand the chance of obtaining gainful employment. Not only is this unfair, but it also makes it hard for such people to earn an honest living, which sometimes causes them to turn to a life of crime once more.
The claim of business necessity may also be invoked in a situation where a company hires a certain sex above another. For instance, a company that is involved in the entertainment industry, such as a casino, may only prefer to hire men in a limited number of positions. They may prefer to employ mainly attractive women to serve as hostesses, dealers at the blackjack tables, and other types of roles. This might be a ground for a discrimination lawsuit by women who do not meet their criteria or definition of attractiveness as well as by men who may feel marginalized.
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