Defense to Disparate Impact – Business Necessity and Rebuttal to Business Necessity

The “business necessity defense” in the context of disparate impact in California employment law is a critical aspect to understand for both employers and employees. This defense is used by employers to justify employment practices that have a disparate impact on a protected class, provided these practices are essential for the business and there is no less discriminatory alternative available.

Legal Framework of Business Necessity Defense

Federal and State Law Context: While federal law, specifically Title VII of the Civil Rights Act of 1964, sets the basis for the defense, California’s Fair Employment and Housing Act (FEHA) might have additional or stricter requirements.
Definition of Business Necessity: An employment practice is considered a “business necessity” if it is vital to the operation of the business and is related to job performance.
Burden of Proof: Initially, an employee must show that a particular employment practice causes a disparate impact. Then, the burden shifts to the employer to prove that the practice is a business necessity.

The Rebuttal to the Business Necessity Defense

An employee can counter the business necessity defense by demonstrating:

Availability of Less Discriminatory Alternatives: If there is an alternative employment practice that serves the same purpose without causing the disparate impact, the defense can be challenged.
Questioning Job-Relatedness: The employee can argue that the practice is not as closely related to job performance as the employer claims.
Proportionality and Reasonableness: The necessity of the practice must be proportional to its impact. If it excessively or unreasonably impacts a protected class, the defense may not hold.

Potential Problems and Examples

Educational Requirements: An employer requiring a college degree for a job that could be performed with a high school diploma could face challenges if this requirement disproportionately excludes certain minority groups. The employer must prove the necessity of a college degree for job performance.
Physical Ability Tests: If a physical ability test is mandatory for a position, and it disproportionately affects women, the employer must demonstrate the direct relevance of this test to the job duties.
Language Requirements: Insisting on fluency in a specific language, which may disproportionately affect certain ethnic groups, must be justified as essential for the job.

Reasoning and Logic Behind Challenges

Identifying Less Discriminatory Alternatives: Employees and their legal representatives often focus on presenting alternative methods that meet the employer’s needs without causing a disparate impact.
Scrutinizing the Direct Job-Relatedness: Courts will closely examine whether the challenged employment practice is necessary for the performance of the job at hand or if it’s a preference of the employer.
Proportionality and Business Impact: Analyzing whether the practice is proportionate to its necessity and whether its removal would significantly disrupt the business.

Conclusion

The business necessity defense is a complex and nuanced aspect of employment law in California, requiring careful consideration of the job-relatedness and essentiality of employment practices that have a disparate impact. Employers must meticulously evaluate and document the necessity of their employment practices, while employees can challenge these practices by presenting less discriminatory alternatives or questioning their relevance to job performance. Navigating these legal waters requires a thorough understanding of both federal and state laws, as well as a careful analysis of the specific employment practices and their impacts on different protected classes.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2503. Affirmative Defense—Business Necessity/Job Relatedness

[Name of defendant] claims that the [employment practice/selection policy] is lawful because it is necessary to [his/her/nonbinary pronoun/its] business. To succeed, [name of defendant] must prove both of the following:

That the purpose of the [employment practice/selection policy] is to operate the business safely and efficiently; and
That the [employment practice/selection policy] substantially accomplishes this business purpose.

New September 2003

Directions for Use

The defense of business necessity is available for disparate impact claims but may not be used as a defense against a claim of intentional discrimination.

CACI No. 2504, Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense, must be given if defendant asserts the defense of business necessity to a disparate impact employment discrimination claim.

Sources and Authority

Justification of Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b), 11017(a), (e).
“In order to meet its burden the [employer] must demonstrate a business necessity for use of the [discriminatory employment practice] . . . . ‘The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any [discriminatory] impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact.’ ” (City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 989–990 [236 Cal.Rptr. 716], quoting Robinson v. Lorillard

Corp. (4th Cir. 1971) 444 F.2d 791, 798.)

The federal Civil Rights Act of 1991 states that one of its purposes is “to codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424], and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) [109 S.Ct. 2115, 104 L.Ed.2d 733].” (Civil Rights Act of 1991, Pub.L. No. 102-166,

§ 3(2) (Nov. 21, 1991) 105 Stat. 1071, 1071.)

Federal title VII provides that while business necessity is a defense to a claim of

disparate impact discrimination, “[a] demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination.” (42 U.S.C. § 2000e-2(k)(2).)

“The touchstone is business necessity. If an employment practice which operates to exclude [a protected group] cannot be shown to be related to job performance, the practice is prohibited . . . Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” (Griggs, supra, 401 U.S. at pp. 431–432.)
“[T]he employer may defend its policy or practice by proving that it is ‘job related for the position in question and consistent with business necessity.’ Though the key terms have been used since Griggs, their meaning remains unclear.” (1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996) Adverse Impact, p. 106, footnotes omitted.)
“[T]here is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ to the employer’s business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet……………………………………………………………………………………… ” (Wards

Cove Packing Co., Inc., supra, 490 U.S. at p. 659.) [Note: This portion of Wards Cove may have been superseded by the Civil Rights Act of 1991.]

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,

Defamation, ¶¶ 7:571, 7:581, 7:915 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-L, Invasion of Privacy, ¶ 7:915 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.90

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.21[4], 41.95[1] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)

1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Adverse Impact, pp. 106–110; id. (2000 supp.) at pp. 62–64

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.23[4][d], 115.54[5], 115.102–115.103 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:25 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2504. Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense

If [name of defendant] proves that the [employment practice/ selection policy] is necessary to [his/her/nonbinary pronoun/its] business, then the [employment practice/selection policy] is lawful unless [name of plaintiff] proves both of the following:

That there was an alternative [employment practice/ selection policy] that would have accomplished the business purpose equally well; and
That the alternative [employment practice/selection policy] would have had less adverse impact on [describe members of protected group—for example, “persons over the age of 40”].

New September 2003

Directions for Use

Federal title VII requires a plaintiff to demonstrate that the employer refused to adopt the alternative employment practice (see 42 U.S.C. § 2000e-2(K)(1)(A)(ii)). There are no published court opinions determining if a similar requirement exists under California law.

This instruction must be given if defendant asserts the defense of business necessity to a disparate impact employment discrimination claim. (See CACI No. 2503, Affırmative Defense—Business Necessity/Job Relatedness.)

Sources and Authority

Justification for Disparate Impact. Cal. Code Regs., tit. 2, § 11010(b).
Disparate Impact Under Federal Law. 42 U.S.C. § 2000e-2(k)(1)(A).
“ ‘The test [of the business necessity defense] is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any [discriminatory] impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally

well with a lesser differential [discriminatory] impact.’ ” (City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 989–990 [236 Cal.Rptr. 716].)

“[T]he standards established by the FEHC for evaluating a facially neutral selection criterion which has a discriminatory impact on a protected group are identical to federal standards under Title VII.” (City and County of San

Francisco, supra, 191 Cal.App.3d at p. 986.)

“If an employer does then meet the burden of proving that its tests are ‘job related,’ it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable [discriminatory] effect, would also serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [95

S.Ct. 2362, 45 L.Ed.2d 280], internal citation omitted.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch.5(I)-E,

Defamation, ¶¶ 7:581, 7:590, 7:591, 7:915 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-L, Invasion of Privacy, ¶ 7:915 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.21[2] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[2][d] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.23[2][c] (Matthew Bender)

California Civil Practice: Employment Litigation § 2:26 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.