California Civil Jury Instructions (CACI)
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/its] business. To succeed, [name of defendant] must prove both of the following:
1. That the purpose of the [employment practice/selection policy] is to operate the business safely and efficiently; and
2. That the [employment practice/selection policy] substantially accomplishes this business purpose.
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
The California Fair Employment and Housing Commission's regulations provide: "Where an employer or other covered entity has a facially neutral practice which has an adverse impact (i.e., is discriminatory in effect), the employer or other covered entity must prove that there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business and that the challenged practice effectively fulfills the business purpose it is supposed to serve. The practice may still be impermissible where it is shown that there exists an alternative practice which would accomplish the business purpose equally well with a lesser discriminatory impact." (Cal. Code Regs., tit. 2, § 7286.7(b).)
The California Fair Employment and Housing Commission's regulations provide: "Any policy or practice of an employer or other covered entity which has an adverse impact on employment opportunities of individuals on a basis enumerated in the Act is unlawful unless the policy or practice is job-related . . . . A testing device or other means f selection which is facially neutral, but which has an adverse impact (as described in the Uniform Guidelines on Employee Selection Procedures (29 CFR 1607 (1978)) upon persons on a basis enumerated in the Act, is permissible only upon a showing that the selection practice is sufficiently related to an essential function of the job in question to warrant its use." (Cal. Code Regs., tit. 2, § 7287.4(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 (1971) [91 S.Ct. 849, 28 L.Ed.2d 158], 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.]
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, § 2.65, pp. 54-55
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.21, 41.95 (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[c] (Matthew Bender)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996) 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[d], 115.54, 115.102-115.103 (Matthew Bender)
Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2.25, pp. 38-40
(New September 2003)