During what type of discrimination case can "business necessity" be used as a defense?

"Business necessity" is a relevant defense primarily in disparate impact discrimination cases. This type of case arises when a seemingly neutral employment practice has a disproportionate adverse effect on a protected group, even if there is no intent to discriminate.

In these situations, an employer can justify the use of a practice that has a disparate impact if they can demonstrate that the practice is necessary for the safe and efficient operation of their business. This means that the employer must show that the requirement or policy is related to the actual needs of the business and necessary to achieve important business outcomes. For instance, if a particular physical requirement for a job is statistically shown to disadvantage a specific demographic group, the employer can invoke "business necessity" if they can prove that the requirement is essential for performance in that role.

Disparate treatment cases focus on intentional discrimination, where an individual is treated unfavorably because of a characteristic such as race or gender, making "business necessity" less applicable. In harassment and retaliation cases, the focus is on unlawful harassment or retaliatory actions taken against an employee, rather than on employment practices or policies, meaning that "business necessity" does not play a role in those contexts.