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Defenses to an allegation of discrimination under this part may include, but are not limited to, the following:
(a) Disparate treatment charges. It may be a defense to a charge of disparate treatment brought under ��1630.4 through 1630.8 and 1630.11 through 1630.12 that the challenged action is justified by a legitimate, nondiscriminatory reason.
(b) Charges of discriminatory application of selection criteria �(1) In general. It may be a defense to a charge of discrimination, as described in �1630.10, that an alleged application of qualification standards, tests, or selection criteria that screens out or tends to screen out or otherwise denies a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required in this part.
(2) Direct threat as a qualification standard. The term �qualification standard� may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. (See �1630.2(r) defining direct threat.)
(c) Other disparate impact charges. It may be a defense to a charge of discrimination brought under this part that a uniformly applied standard, criterion, or policy has a disparate impact on an individual with a disability or a class of individuals with disabilities that the challenged standard, criterion or policy has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required in this part.
(d) Charges of not making reasonable accommodation. It may be a defense to a charge of discrimination, as described in �1630.9, that a requested or necessary accommodation would impose an undue hardship on the operation of the covered entity�s business.
(e) Conflict with other Federal laws. It may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.
(f) Claims based on transitory and minor impairments under the �regarded as� prong. It may be a defense to a charge of discrimination by an individual claiming coverage under the �regarded as� prong of the definition of disability that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) �transitory and minor.� To establish this defense, a covered entity must demonstrate that the impairment is both �transitory� and �minor.� Whether the impairment at issue is or would be �transitory and minor� is to be determined objectively. A covered entity may not defeat "regarded as" coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor. For purposes of this section, �transitory� is defined as lasting or expected to last six months or less.
(g) Additional defenses. It may be a defense to a charge of discrimination under this part that the alleged discriminatory action is specifically permitted by �1630.14 or �1630.16.
[76 FR 17003 March 25, 2011]