(A) is job related for the position in question and consistent with
business necessity; and
(B) that the business necessity could not be served by another
practice that has a less discriminatory effect.
(ii) A legally sufficient justification shall be supported by evidence
and may not be hypothetical or speculative. The burdens of proof for
establishing each of the two elements of a legally sufficient
justification are set forth in paragraph (d) of this subdivision.
(d) (i) The complainant shall have the burden of proving that a
challenged practice caused or predictably will cause a discriminatory
effect.
(ii) 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 job related for the position
in question and consistent with business necessity.
(iii) 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 business necessity 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.
6. It shall be an unlawful discriminatory practice for any person to
aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this article, or to attempt to do so.