In a disparate impact ADA case,an employer can defend with a claim of business necessity.This involves all of the following except:

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Disparate impact cases, on the other hand, will involve a qualification standard, a rule that applies across the board to all employees. In those cases, the employer may defend with a claim of business necessity, by explaining that the qualification standard was dictated by business requirements. Note that this is different from the bona fide occupational qualification (BFOQ) defense, which applies in some other antidiscrimination cases, and which does not apply in disability discrimination cases. The business necessity defense requires the employer to demonstrate all of the following: 1) The qualification standard is job related (it fairly measures the individual's actual ability to perform the essential functions of the job); 2) the standard is consistent with business necessity (it substantially promotes the business's needs); and 3) Performance cannot be accomplished by reasonable accommodation (no reasonable accommodation would cure the deficiency or the accommodation would pose an undue hardship on the employer).

In a Disparate Impact ADA Case,an Employer Can Defend with a Claim