> “Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question.[3] This is the "business necessity" defense.[1]”
I wonder if you could argue that advertising in a particular way is a business necessity because without doing so, the business cannot maintain competitive viability in reaching necessary candidates.
Just for a devil’s advocate example, suppose that travelling to university recruiting fairs to recruit for computer science job listings has a disparate impact against female candidates, because the gender composition of university programs in computer science are heavily skewed towards male applicants.
But university program graduates may be the only qualified type of candidate for the position, so simply not targeting candidates in the male-overrepresented way (i.e. not attending these university job fairs) would be debilitating and hugely damaging for employers who require those qualified candidates to be competitive in the market.
Yes, the hypothetical you described is one potential scenario of the line you quoted:
> ... unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question.[3] This is the "business necessity" defense.[1]”
But it's still just a hypothetical. The only way to get more certainty is for you to hire a lawyer to advise you on the matter. The only way to get absolute certainty is to actually carry out the scenario and go through a lawsuit :-)
You can have an employment policy that favors CS grads when hiring programmers because, while the policy is effectively discriminatory, you can show that it directly relates to the job being hired for.
It seems this would easily extend to many more types of job recruitment targeting then too, no? Or at least targeting job ads seems like it would be done for the exact same reasons as favoring CS grads in recruitment, until clearly proven otherwise?
Sure, but it changes the optics from those companies doing actively something nefarious, to doing it accidentally out of ignorance of the underlying technologies.
