633 Respondent’s burden to show job-relatedness

Once the Complainant has established a prima facie case, the employer may attempt to rebut the prima facie case by way of evidence that the employment practice or selection device has a manifest relationship to the employment in question. Moncrief v. Gardner Baking (LIRC, 07/01/92).

Unlike Title VII, which protects bona fide seniority systems, the Wisconsin Fair Employment Act has no specific protection for such systems, and if it is demonstrated that the application of such systems has a disparate impact on minorities, the employer must demonstrate the requisite business necessity or job-related defense for the practice or be found to have engaged in illegal discrimination. Lopez v. Milwaukee County (LIRC, 11/04/86).

Once a Complainant establishes that an employer’s policies have a disparate impact on blacks or other protected groups, the employer's burden is to prove that the policy is based on a legitimate business necessity. That burden is not one merely of articulation, but of proof. Nickols v. LIRC (A.O. Smith) (Milwaukee Co. Cir. Ct., 12/03/82).

If the Complainant can demonstrate that a practice has a disparate impact, the employer has the burden of showing that its selection process bears a demonstrable relationship to successful job performance. Tall v. City Council of Shullsburg (LIRC, 05/13/80).