Title 28
Labor and Labor Relations

Chapter 5
Fair Employment Practices

§ 28-5-7.2. Proof of unlawful employment practices in disparate impact cases.

(a) An unlawful employment practice prohibited by § 28-5-7 may be established by proof of disparate impact. An unlawful employment practice by proof of disparate impact is established when:

(1) A complainant demonstrates that an employment practice results in a disparate impact on the basis of race, color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin, and the respondent fails to demonstrate that the practice is required by business necessity; or

(2) A complainant demonstrates that a group of employment practices results in disparate impact on the basis of race, color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin, and the respondent fails to demonstrate that the practices are required by business necessity; provided that:

(i) If a complainant demonstrates that a group of employment practices results in a disparate impact, the complainant shall not be required to demonstrate which specific practice or practices within the group results in the disparate impact; and

(ii) If the respondent demonstrates that a specific employment practice within that group of employment practices does not contribute to the disparate impact, the respondent shall not be required to demonstrate that the practice is required by business necessity.

(b) A demonstration that an employment practice is required by business necessity may be used as a defense only against a claim under this section.

(c) As used in this section:

(1) “Complainant” and “respondent” mean those individuals or entities defined as such in § 28-5-17;

(2) “Demonstrates” means meets the burdens of production and persuasion;

(3) “Group of employment practices” means a combination of employment practices or an overall employment process; and

(4) “Required by business necessity” means essential to effective job performance.

(d) Nothing contained in this section shall be construed as limiting the methods of proof of unlawful employment practices under § 28-5-7 to the methods set in this section.