Pub. L. No. 102-166, § 105

Section 105 requires a plaintiff bringing a disparate impact claim to show that a particular employment practice causes a disparate impact based on a protected characteristic.

Collette v. St. Luke's Roosevelt Hospital · filed 2001-02-26

Following Wards Cove, Congress enacted the Civil Rights Act of 1991, Pub.L. 102-166, § 105 (1991) (codified as amended at 42 U.S.C. § 2000e-2(k)(l)(A)(i)), which, inter alia, codified the plaintiff’s prima facie burden of proof in disparate impact cases as requiring a "demonslral[ion] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.”

Section 105(a) requires a disparate impact plaintiff to show that the challenged practice causes an adverse impact before relying on a less discriminatory alternative.

Price, Lisa v. City of Chicago · filed 2001-05-24(a)

The framework established by Albemarle places the issue of whether less discriminatory alternatives exist at the end of the disparate impact analysis; certainly, there is no suggestion that a plaintiff may vault over the initial inquiries and rest her case entirely on the existence of alternatives.

Section 105(a) codifies the burden to show that an identifiable employment practice caused a significant disparate impact on a protected group.

Carpenter v. The Boeing Company · filed 2006-08-07(a)

"[A] plaintiff may establish a prima facie case of disparate impact discrimination by showing that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group." Id. (internal quotation marks omitted). This burden, which had been imposed by caselaw, see, e.g., Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir.1991), was codified by statute in 1991. See 42 U.S.C. § 2000e-2(k); Civil Rights Act of 1991, Pub.L. No. 102-166, § 105(a), 105 Stat. 1071, 1074-75.

Section 105(a) requires a plaintiff to show that the challenged practice has a disparate impact before relying on a less discriminatory alternative.

Price v. City of Chicago · filed 2001-05-24(a)

Ms. Price’s contention that the 1991 Amendments eliminated the plaintiffs burden of establishing a prima facie case is untenable.

Section 105 requires a disparate impact claimant to identify an employment practice that disproportionately affects a protected group; at the pleading stage, allegations of that effect suffice.

United States v. Pennsylvania · filed 2015-05-21

Under the statute, the plaintiff must “demonstrate[ ] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(l)(A)(i). ... Taken together, and drawing all inferences in the United States’ favor, the complaint has adequately alleged that Defendants’ employment practice has had a disparate impact on women. Nothing more is required at this stage.

Section 105(a) places the burden on an employer to prove that a challenged practice with a disparate impact is job related and consistent with business necessity.

Legault v. aRusso · filed 1994-02-10(a)

As a result, the defendant once again bears the full burden of proving business necessity.

Section 105(a) requires an employer to prove business necessity when defending a practice that has a disparate impact.

Nash v. Consolidated City of Jacksonville · filed 1995-08-04(a)

Section 105 of the Civil Rights Act of 1991 reversed Wards Cove by adding a new amendment, codified as 42 U.S.C. § 2000e-2(k)(1), restoring pre-Wards Cove law in which, inter alia, “business necessity” is an affirmative defense on which the defendant bears the burden of persuasion and “business necessity” really means “necessity.”

Section 105(a) places the burden on an employer to show that a challenged employment test measures skills needed for the job and is job related and consistent with business necessity.

United States v. Massachusetts · filed 2011-05-04(a)

In distillation of the above, this Court is left with the following two-part standard for the business necessity defense: (1) Business necessity: whether the skill sought to be measured by the employment test is consistent with business necessity (essentially, is the skill actually a prerequisite for the job in question?); and (2) Relatedness: whether the test itself is clearly job related by closely approximating on-the-job tasks (essentially, does the test effectively measure those skills identified in step one? Does the test have content validity?).

Section 105(a) requires plaintiffs proposing a less discriminatory alternative employment practice to show that it is substantially equally valid under the law that existed before Wards Cove.

Percy Allen, Yvette Clinkscale, Paul Gergoire v. City of Chicago · filed 2003-12-09(a)

As a result of the 1991 Amendments to the Civil Rights Act, Pub.L. 102-166, § 105(a), 105 Stat. 1071, 1074 (1991) (codified at 42 U.S.C. § 2000e-2(k)), plaintiffs seeking to demonstrate a less discriminatory alternative must do so under the law that existed prior to the Supreme Court’s decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989).

Section 105 places the burden of demonstrating an acceptable alternative employment practice on the plaintiff in a Title VII disparate impact suit.

International Brotherhood of Electrical Workers, AFL-CIO, Local Unions Nos. 605 & 985 v. Mississippi Power & Light Co. · filed 2006-03-02

The plain language of the statute shows that the burden of demonstrating acceptable alternative employment practices, set forth in § 2000e-2(k)(1)(A)(ii), is one that rests upon Title VII plaintiffs, not defendants.

Section 105(a) allows a plaintiff to prevail despite an employer’s business-necessity showing by demonstrating an available, equally valid, less discriminatory practice that the employer refused to adopt.

Chicago Teachers Union, Local 1 American Federation of Teachers, AFL-CIO v. Board Of Education City Of Chicago · filed 2020-01-03(a)

The less-discriminatory-alternative requirement, like the job relatedness/business necessity defense, was codified by the Civil Rights Act of 1991, Pub. L. 102-166, § 105(a), 105 Stat. 1071; see 42 U.S.C. § 2000e-2(k), but the statute does not attempt to define the requirement, apart from referring to case law. The statute provides that, if the employer shows that the challenged practice is job related and consistent with business necessity, the plaintiff may still prevail if she “makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the [employer] refuses to adopt such alternative employment practice.” 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

Section 105 codified disparate-impact burdens of proof and reaffirmed an existing theory of liability that applied to state employers.

Crum v. State of Alabama · filed 1999-12-29

There is no indication that, by enacting the 1991 amendments, Congress sought to do anything more than reaffirm and strengthen the disparate impact analysis, see supra, n. 12 and part II.

Section 105 abrogates the Wards Cove disparate-impact framework for Title VII claims, leaving it applicable to claims under other antidiscrimination statutes.

Hardie v. National Collegiate Athletic Ass'n · filed 2017-06-27

The Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074 (1991), abrogated Wards Cove with respect to claims under Title VII, but the Supreme Court has continued to apply Wards Cove burden shifting to other antidiscrimination statutes.

Section 105 abrogates Wards Cove’s burden-shifting framework for Title VII claims, while leaving its use under other antidiscrimination statutes intact.

Hardie v. Ncaa · filed 2017-09-11

The Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074 (1991), abrogated Wards Cove with respect to claims under Title VII, but the Supreme Court has continued to apply Wards Cove burden shifting to other antidiscrimination statutes.

Section 105(b) designates an interpretive memorandum as the exclusive legislative history for construing provisions of the Act related to Wards Cove and business necessity.

Easterling v. State of Connecticut · filed 2011-05-05(b)

The Act also designated a three paragraph “interpretive memorandum” as the exclusive “legislative history” of the Act when “construing or applying, any provision of this Act that relates to Wards Cove — Business necessity / cumulation / alternative business practice.” Pub.L. No. 102-166, § 105(b) (codified as 42 U.S.C. § 1981 (note)).