Business necessity is a critical defense in disparate impact cases. Employers must demonstrate that the challenged policy or practice is essential to the operation of the business. To support this defense, concrete evidence, such as expert testimony or empirical data, is required rather than relying on general assertions.
Engaging statistical experts can be beneficial in analyzing data related to the disparate impact claim. These experts can help in understanding the plaintiff’s statistical methodology and potentially challenge any flaws or misinterpretations in their analysis.
Subject matter experts can also play a crucial role in establishing the job-relatedness of the challenged requirements. Their testimony can help demonstrate that the policy or practice in question is directly related to the job’s essential duties.
Consistency in applying the policy across different demographic groups is another important aspect of the defense. Employers should be prepared to demonstrate that the policy or practice has been applied uniformly.
Finally, documentation of any alternatives considered and the reasons for not adopting them can strengthen the defense. This shows a deliberate and thoughtful approach to policy development, further supporting the business necessity defense.
Case Studies: Lessons from Major Disparate Impact Cases
The landmark case of Ricci v. DeStefano presented a complex challenge for employers navigating the nuances of disparate impact liability. This case, decided by the U.S. Supreme Court in 2009, highlighted the tension between avoiding disparate impact and creating disparate treatment in employment practices.
Ricci v. DeStefano
The Ricci v. DeStefano case involved a fire department’s decision to discard promotion test results because they would have had a disparate impact on minority candidates. The Supreme Court ultimately ruled that the fire department’s actions constituted illegal disparate treatment of white firefighters.
The ruling established that fear of disparate impact liability does not justify race-based disparate treatment without a “strong basis in evidence” that the employer would be liable for disparate impact. This decision set a high bar for employers when taking race-conscious actions to avoid disparate impact liability.
The case demonstrates the complex balancing act employers face when addressing potential disparities in employment outcomes. Justice Kennedy’s majority opinion emphasized the importance of designing fair and job-related tests from the outset, rather than attempting to address disparities after the fact.
