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I've been reading up on the same, spurred by Palladium's recent piece on a related topic.
The 1991 CRA lists the goal "to codify the concepts of business necessity", but it doesn't actually do anything to define that term. The most common legal theory I can find is "No Alternatives", which states that you can use an aptitude test as long as there's no alternative that would have less disparate impact. The actual implementation seems to be a hedge magic of best-practices, derived through the flailing of HR departments reacting to lawsuits. Critically, the burden of proof is on the business -- if you're causing a "disparate impact", you're guilty by default unless you can prove the necessity.
So, there could be room for the courts to clearly spell out a way of proving business necessity. If I were a lawyer I'd go digging for court cases where such a proof has been successful.
No alternatives means nothing and is entirely up to discretion. If an alternative results in 50% more diversity hire but 1% less efficiency, is it viable? What about 10% more diversity for 80% less efficiency? I doubt there are many alternatives found that result in increased efficiency, and if there are, the firm that doesn’t implement them will be punished by the market.
Thanks for sharing the Palladium article. It’s a death spiral that I remain more pessimistic about than Hanania, and my ideations have shifted from how best to change it towards how best to avoid the catastrophic consequences.
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