CACI No. 2504. Disparate Impact - Rebuttal to Business Necessity/Job Relatedness Defense

Judicial Council of California Civil Jury Instructions (2023 edition)

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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:
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”].
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 employers 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)

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