; ability tests Notwithstanding any other provision of this section, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of military service, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of military service. (i) Preferential treatment not To be granted on account of existing number or percentage imbalance Nothing contained in this section shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this section to grant preferential treatment to any individual or to any group because of the military service of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons with military service employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons with military service in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. (j) Burden of proof in disparate impact cases (1) Disparate impact (A) Establishment An unlawful employment practice based on disparate impact is established under this section only if— (i) a complaining party demonstrates that a