§ 168A-9. Affirmative defenses. - North Carolina Statutes

§ 168A‑9. Affirmative defenses.

Any employer may assert affirmative defenses in any action broughtunder this Chapter. This section shall not create any inference that anemployment action which is not listed as an affirmative defense is therefore,by implication, a discriminatory practice, so long as the employment action isnot otherwise prohibited by this Chapter. The following is a non‑exclusivelist of affirmative defenses:

(1)        The failure of the qualified person with a disability tocomply with or meet the employer's work rules and policies or performancestandards, provided that such person is not held to rules or standardsdifferent from other employees without a disability similarly employed;

(2)        The excessive, willful or habitual tardiness or absence of aqualified person with a disability, provided that the standard used by theemployer in determining whether such tardiness or absence is excessive is thesame as that applied by the employer to employees without a disabilitysimilarly employed; or

(3)        A bona fide seniority or merit system, or a system whichmeasures earnings by quantity or quality of work or production, or differencesin location of employment. (1985, c. 571, s. 1; 1999‑160, s. 1.)