(2) Once the complainant satisfies the burden of proof set forth in
subparagraph one of this paragraph, the respondent shall have the burden
of proving that the challenged practice is necessary to achieve one or
more substantial, legitimate, nondiscriminatory interests of the
respondent.
(3) If the respondent satisfies the burden of proof set forth in
subparagraph two of this paragraph, the complainant may still prevail
upon proving that the substantial, legitimate, nondiscriminatory
interests supporting the challenged practice could be served by another
practice that has a less discriminatory effect.
(e) A demonstration that a practice is supported by a legally
sufficient justification, as defined in paragraph (c) of this
subdivision, may not be used as a defense against a claim of intentional
discrimination.
(f) Nothing in this subdivision shall be construed or interpreted as
limiting, restricting, overriding, or supplanting any broader
interpretation of the discriminatory practices described in this article
or the availability of liability under this article.
5-b. (a) For any case alleging employment discrimination under this
article, an unlawful discriminatory practice may be established by a
practice's discriminatory effect, even if such practice was not
motivated by a discriminatory intent. The practice may still be lawful
if supported by a legally sufficient justification, as defined in
paragraph (c) of this subdivision.
(b) For the purposes of this subdivision, a practice has a
discriminatory effect where it actually or predictably results in a
disparate impact on a group of persons, because of their membership in a
class protected under this section.
(c) (i) A legally sufficient justification exists where the challenged
practice: