Governor Wolf and Mayor Kenney have designated certain businesses essential. I agree with most of their choices, like for grocery stores, laundromats, and pharmacies. I agreed when Governor Wolf deemed gun stores non-essential. But of course the NRA (the front for the gun manufacturers) had to put their considerable money muscle on it post-haste and get those stores back open! Why do people need guns right now? “To protect all the toilet paper they’re hoarding.” Boom! Wish I’d come up with that gem, but I didn’t it. I’ll credit it “anonymous” since it disparages people with violent tendencies. Not giving you guys a target.
Garden centers have been deemed non-essential, but big box stores like Lowe’s and Home Depot can continue to sell ample GMO bio-cide laden plants and materials with no constraints. Meanwhile, industry-leading small businesses like Primex have been forced to shut down. And in an industry where at least 50% of revenue comes in April, May, and June, I worry that the small businesses will not recover.
If garden centers are non-essential, allow no stores to sell garden products.
Garden centers sell food-bearing plants! Apparently, food is only essential if someone else grows it, picks it, ships it, and puts it on a shelf for you.
If our primary intention is to prevent greater spread of COVID-19 by preventing non-essential activities, we should be doing a much better job of defining said activities. And not cave to rich companies who have too much power and money already.
Many ads for landscaping jobs include the requirement that applicants be able to lift 50 pounds. It seems an appropriate prima facie requirement for this sort of physical labor: shoveling dirt and mulch, carrying buckets of debris, and swinging leaf blowers around, for instance. But any time you see a job requirement that appears verbatim in ads from other companies in the same industry, it’s a good bet that you’ve discovered some legalese intended to cover the employer’s ass.
Any guesses on the problem here? On average, men are stronger than women, right? So if a landscaper doesn’t hire a woman, and wants to prevent accusations of bias, they claim that employees must be strong and that she wasn’t strong enough because she couldn’t lift 50 pounds. “Must lift 50 pounds” is an example of an attempted “business necessity” defense for a potential sex (or disability) discrimination suit. That sort of defense worked well in the 70s, but it’s often rejected in more recent cases.
Establishing business necessity
A nurse for Saint Clare’s Health System became injured on the job and before returning to work, a functional capacity evaluation recommended that she should frequently lift no more than 16 pounds. She was fired because she couldn’t frequently lift 50 pounds and the employer claimed that was an essential function of the job. The nurse sued for wrongful termination. The crux of the case was whether her job truly required frequently lifting 50 pounds. The New Jersey Supreme Court ruled that it did not. The business necessity standard originated with a 1971 Supreme Court case involving Duke Power Company. The Court found that Duke’s employment requirements (e.g., including a high school diploma) discriminated against black employees and candidates andthat the hiring requirements were not directly related to the jobs. For instance, plenty of white workers didn’t have diplomas, but nonetheless held jobs that black workers couldn’t get. Cases like these begin with a plaintiff alleging discriminatory treatment against a protected class. They must prove disparate treatment (e.g., won’t hire a person in a wheel chair) and/or disparate impact (e.g., won’t employ people taller than 5’6” so fewer men are hired). Then the firm must prove that there is a bona fide occupational qualification (BFOQ) or business necessity. BFOQ applies in disparate treatment cases; a casting call for a toddler would have a BFOQ against hiring a 40-year old woman. Business necessity applies in disparate impact cases; an ESL class requires a teacher who can speak English (ipso facto), though this has a disparate impact on applicants whose country of origin is not English-speaking.
Another example of a disparate impact on women is from Eastern Airlines (remember them?) back in the late 1970s. They required flight attendants to take maternity leave when pregnancy began, and the pregnant women lost income and seniority as a result. Eastern’s defense cited the job duties to lift “up to 25 pounds regularly, 50 pounds occasionally” and to “lift out emergency window exits-weight 30 pounds each exit.” Eastern had to prove that this lifting requirement was necessary to the “safe and efficient operation of the business,” and there was no acceptable alternative to the policy that could accomplish the operation just as well (without causing the disparate impact). They were only partly successful. The ruling tied leave requirements to pregnancy stage and doctor’s permission, allowing women full employment through the 13th week and prohibiting flight duty after the 28th.
In 2016 Gordon Food Service saw the writing on the wall. Rather than take their feeble business necessity defense to court, they agreed to pay $1.85 million to 926 qualified female candidates and hire 37 of those candidates. See, GFS regularly eliminated women applicants through the use of a strength test measuring “upper and lower body resistance” but that test was found to be more stringent than the actual job requirements.
Coming in part 2:
What about business necessity in landscaping? How much force is required to push a lawnmower up a ramp? and Can you jump off the ground? Congratulations, you can lift 50 pounds.