24.9.605    EMPLOYMENT DISCRIMINATION: REASONABLE DEMANDS/ BONA FIDE OCCUPATIONAL QUALIFICATION EXCEPTIONS

(1) It is not unlawful employment discrimination to make a distinction based on age, physical or mental disability, marital status, or sex when the reasonable demands of the position or program require the distinction.

(2) The commission construes the exceptions contained in this rule strictly, against allowing the exception.

(3) The commission construes the statutory exception permitting distinctions based on age, marital status and sex in accordance with the legal standards for "bona fide occupational qualifications" under section 703 (e) (1) of the Civil Rights Act of 1964 (42 U.S.C. 2000-2 (e) (1) ) and section 4(f) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(f) ) .

(4) The commission construes the statutory exception permitting distinctions based on physical or mental disability in accordance with the legal standards for determining whether a person is a "qualified individual with a disability" under section 101(8) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111(8) ) .

(5) These exceptions are affirmative defenses. A respondent claiming an exception has the burden of proof on the issue.

History: 49-2-204, 49-3-106, MCA; IMP, 49-2-101 (1), 49-2-101 (15), 49-2-303, 49-3-101 (1), 49-3-101 (3), 49-3-101 (5), 49-3-201, and 49-3-202, MCA; NEW, 1996 MAR p. 2871, Eff. 10/25/96.