I think in practice that would be a poor defense especially when the burden of proof is on the company to show that they don’t have a discriminatory hiring poli

I think in practice that would be a poor defense especially when the burden of proof is on the company to show that they don’t have a discriminatory hiring policy. “Your honor, we ended up hiring mostly men simply because they are more cost effective” sounds like a really quick way to lose a disparate impact lawsuit.