David B. Grinberg
Phoung, this is obviously a broad technical question subject to a myriad of legal interpretations.
While I’m not a lawyer per se, I do work closely with the legal community and communicate about various legal employment issues and situations (albeit with the assistance and guidance of legal SMEs). Thus my understanding, in layperson’s terms, is that an employer must justify why the behavior at issue is necessary to the core business operations and functions — or conversely, how it will damage or be harmful to the core business operations and functions.
Keep in mind that an employer’s legal interpretation of “business necessity” may be at odds with that of state, local, and federal regulatory agencies, the labor community, as well as with courts at every level of government — up to and including the U.S. Supreme Court. It is not uncommon, for instance, for different federal circuit and appellate courts to have diferring opinions based on their legal jurisdiction.
Therefore, there is not always a universally defined standard, unless the Supreme Court rules on it, or Congress legislates it. Rather, whether an employment action or decision is based on “business necessity” must be handled and legally interpreted on a case by case basis. Further, while some cases may appear alike, they are often not exactly the same.
I hope this helps…employment lawyers, please weigh in…