1. (a) Evidence of disparate impact may include statistical or other evidence that:

   1. (1) a group of individuals, other than members of a protected class, receive better or more effective benefits of the program or activity than members of a protected class, or that the same benefits are more burdensome to obtain for members of a protected class;
   2. (2) the benefits of the program were reduced, less effective, or more burdensome to obtain when members of a protected class were eligible for, or participated in, a program or activity to a greater extent than in the past;
   3. (3) the program or activity creates, increases, reinforces, or perpetuates segregation on the basis of membership in a protected class;
   4. (4) a particular condition to receiving benefits of the program disproportionately excludes individuals on the basis of membership in a protected class from participation in or receipt of the benefits of the program; or
   5. (5) the objectives of the program or activity were defeated or substantially impaired for members of a protected class.

2. (b) Burdens of Proof in Disparate Impact Discrimination Cases.

   1. (1) The complainant, plaintiff, or petitioner must show that the practice they are challenging has a disparate impact. This means that, in a legal proceeding, the complainant, plaintiff, or petitioner has the burden of proving that an action, practice or practices caused or predictably will cause a disparate impact.
   2. (2) If the complainant, plaintiff, or petitioner shows that the challenged practice has a disparate impact, the respondent can avoid liability by showing that the practice is justified despite the disparate impact. In a legal proceeding, this means that once the complainant, plaintiff, or petitioner satisfies the burden of proof set forth in paragraph (1) of this subsection, the burden shifts to the respondent to prove that the challenged practice meets the elements of a legally sufficient justification under subsection (c) in this section.
   3. (3) If the respondent satisfies the burden of proof set forth in paragraph (2) of this subsection, the complainant, plaintiff, or petitioner may still prevail by proving that the purpose for the challenged action or practice can be equally served by an action or practice that has a less discriminatory effect.

3. (c) Legally Sufficient Justification.

   1. (1) A legally sufficient justification exists when the respondent proves that the action or practice is necessary to achieve a substantial, legitimate, and nondiscriminatory purpose sufficiently compelling to override the disparate impact and that the action or practice effectively carries out the purpose it is alleged to serve.
   2. (2) A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 11135, 12926, 12926.1, 12940, 12955 and 12955.8, Government Code.

History

1. New section filed 3-19-2024; operative 7-1-2024 (Register 2024, No. 12).