California Civil Jury Instructions (CACI)

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/its] business, then the [employment practice/selection policy] is lawful unless [name of plaintiff] proves both of the following:

1. That there was an alternative [employment practice/ selection policy] that would have accomplished the business purpose equally well; and

2. 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"].

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, Affirmative Defense—Business Necessity/Job Relatedness.)

Sources and Authority

" '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].)

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).)

"[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.)

Under federal title VII, a plaintiff may establish an unlawful employment practice based on disparate impact in one of two ways: (1) the plaintiff demonstrates that a defendant uses a particular employment practice that causes a disparate impact on the basis of a protected status, and the defendant "fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity"; or (2) the plaintiff demonstrates that there is an alternative employment practice with less adverse impact, and the defendant "refuses to adopt such alternative employment practice." (42 U.S.C. § 2000e-2(k)(1)(A).)

"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

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)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2.26, p. 40

(New September 2003)