§ 11A-41. Burden of proof in disparate impact cases.

(1)

(a) An unlawful contracting, procurement, bonding and/or financial services practice based on disparate impact is established under this subchapter only if:

(i)

A complaining party demonstrates that a respondent uses a particular contracting, procurement, bonding and/or financial services practice that causes a disparate impact on the basis of race, color, religion, gender, pregnancy, age, disability or national origin and the respondent fails to demonstrate that the challenged practice is consistent with business necessity; or

(ii)

The complaining party demonstrates that there is a non-discriminatory alternative contracting, procurement, bonding or financial services practice and the respondent refuses to adopt such alternative contracting, procurement, bonding and/or financial services practice.

(b)

(i)
With respect to demonstrating that a particular contracting, procurement, bonding and/or financial services practice causes a disparate impact as described in subparagraph (a)(i), the complaining party shall demonstrate that each particular challenged contracting, procurement, bonding and/or financial services practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decision-making process are not capable of separation for analysis, the decision-making process may be analyzed as one contracting, procurement, bonding and/or financial services practice.

(ii)

If the respondent demonstrates that a specific contracting, procurement, bonding and/or financial services practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(iii)

A demonstration that a contracting, procurement, bonding and/or financial services practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

(2)

Except as otherwise provided in this subchapter, an unlawful contracting, procurement, bonding and/or financial services practice is established when the complaining party demonstrates that race, color, religion, gender, pregnancy, age, disability, or national origin was a motivating factor for any contracting, procurement, bonding and/or financial services practice, even though other factors also motivated the practice.

(Ord. No. 97-67, § 1, 6-3-97)