Sec. 14.03.02.08. Affirmative Defenses

A. Bona Fide Occupational Qualification.

(1) A covered entity may take discriminatory actions otherwise prohibited under this chapter if mental or physical ability is a bona fide occupational qualification (BFOQ), reasonably necessary to the normal operation of the business or program.

(2) A covered entity has the burden of establishing the existence of a BFOQ. In determining whether the BFOQ defense, narrowly construed, has been met, a covered entity shall show that the particular standard or regulation is reasonably necessary to the normal operation of that business, and that:

(a) All or substantially all individuals with the particular disability would be unable, even with reasonable accommodation, to perform the duties of the job in question; or

(b) It is impossible or highly impractical to determine, on an individual basis, whether an individual with the particular disability would be able to perform the duties of the job in question.

B. Future Hazard.

(1) A covered entity may take discriminatory actions otherwise prohibited by this chapter, if the applicant's or employee's disability would create a future hazard to health or safety.

(2) To establish a future hazard defense, a covered entity shall show that:

(a) It conducted an individualized assessment of the individual's ability to perform the essential functions of the job in question; and

(b) To a reasonable probability, the individual's disability, even with reasonable accommodation, would render the individual unable to perform the duties of the position in question without endangering the health or safety of the individual with a disability or others.