The Hiring Process
Federal law prohibits an employer from making intentional hiring decisions based upon an applicant's race, color, religion, sex, national origin, age or disability. Nevada law also prohibits discrimination based upon sexual orientation, or gender identity or expression. See NRS § 613.330. In addition, an employer cannot discriminate against a woman because of her pregnancy or ask pregnancy-related questions. Further, any hiring method that has an adverse impact on a protected employee group (race, color, age, etc.) even though neutral and facially nondiscriminatory, is unlawful unless the method is job- related and consistent with business necessity. It is not unlawful to hire employees on the basis of religion, sex, national origin or age if those characteristics are bona fide occupational qualifications ("BFOQ") of the job and reasonably necessary to the normal operation of the employer. To establish a BFQO defense, an employer must prove: (1) a relationship between the classification and job performance; (2) the necessity of the classification for successful performance; and (3) that the job performance affected is the essence of the employer's business operation. For example, gender-based staffing can be a BFOQ when it is necessary for therapeutic care of privacy concerns. See Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3rd Cir. 1996). Courts, however, do not favor BFQO defenses and construe them very narrowly.
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