Does the employer have to prove business necessity in a disparate impact case?
Since the Civil Rights Act of 1991, once a prima facie allegation has been established, the employer is required to not only prove that the employment practice is job related, but that it is required by business necessity. To establish business necessity, the employer must show that its particular business practice bears a demonstrable relationship to the successful performance of the jobs for which it was used. What happens if there is a mixed motive in an action taken by an employer; one discriminatory and the other non-discriminatory (intentional discrimination) when the employer had a mixed motive and if that same action would have been taken even in the absence of the discriminatory motive. The Civil Rights Act of 1991 overturns this making any discrimination unlawful, even if the employee would have suffered the same adverse action in the absence of the discriminatory motive.
