![](https://d3ilqtpdwi981i.cloudfront.net/H_W_gqLPawFCtXJJykYjYQIXn1w=/425x550/smart/https://bepress-attached-resources.s3.amazonaws.com/uploads/a5/98/a2/a598a240-5350-4e90-a1ed-9a57a00bb88b/thumbnail_6e80949d-7fb3-4cdf-a406-749a572efa58.jpg)
An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, I propose that when plaintiffs contribute to a disparity in this way, the employer should not be liable. I demonstrate that the "lack of effort" defense is consistent with the text of Title VII and the case law, which has largely ignored this issue. Finally, I show that my proposal is supported by both the theoretical rationales underlying disparate impact and a consequentialist analysis.
Available at: http://works.bepress.com/peter_siegelman/1/