Special Cases: Employment Practices Typically Not Permitted

The following employment practices, which could otherwise be construed as discriminatory, are legally permissible:227

  • An employer may refuse to hire an individual for a reason which constitutes a “bona fide occupational qualification.” For example, religion is a bona fide occupational qualification for certain positions in religious organizations.
  • An employer may follow a bona fide seniority system which requires differences in wages, hiring priorities, layoff priorities, vacation credit, job assignments and the like, as long as these differences are based on seniority and are not a subterfuge to evade discrimination laws.
  • Certain differences in benefits will not be considered evidence of age discrimination so long as those differences are based on cost and the cost of benefits for individuals of all ages is reasonably equivalent.
  • Certain organizations whose primary function is to provide youth activities, as well as religious and fraternal associations, are exempt from discriminatory prohibitions related to sexual orientation. (See Sexual Orientation Discrimination discussed later in this Guide).
  • Pre-employment physical examinations and pre-employment testing are permitted under certain circumstances (discussed under the Hiring Process section of this Guide).
  • Obtaining medical information from an employee after employment has commenced is permissible, with the consent of the employee, for the following purposes:
    • To assess the employee’s continuing ability to perform the job;
    • To determine employee health insurance eligibility;
    • To comply with mandates of local, state or federal law;
    • To assess the need to reasonably accommodate a disabled employee; or
    • To further or implement another legitimate business reason not otherwise prohibited by law.

All medical information obtained from an employee must be collected on separate forms and maintained in separate medical files as confidential medical records.

CREDITS: This is an excerpt from An Employer’s Guide to Employment Issues in Minnesota, provided by the Minnesota Department of Employment and Economic Development & Linquist & Vennum P.L.L.P., Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.