; and (2) by adding at the end the following: (b) (1) (A) Discrimination (including exclusion from participation and denial of benefits) based on disparate impact is established under this title if— (i) an entity subject to this title (referred to in this subsection as a covered entity ) has a program, policy, practice, or activity that causes a disparate impact on the basis of race, color, or national origin and the covered entity fails to demonstrate that the challenged program, policy, practice, or activity is related to and necessary to achieve the nondiscriminatory goal of the program, policy, practice, or activity alleged to have been operated in a discriminatory manner; or (ii) a less discriminatory alternative program, policy, practice, or activity exists, and the covered entity refuses to adopt such alternative program, policy, practice, or activity. (B) With respect to demonstrating that a particular program, policy, practice, or activity does not cause a disparate impact, the covered entity shall demonstrate that each particular challenged program, policy, practice, or activity does not cause a disparate impact, except that if the covered entity demonstrates to the courts that the elements of the covered entity’s decision-making process are not capable of separation for analysis, the decision-making process may be analyzed as 1 program, policy, practice, or activity. (2) A demonstration that a program, policy, practice, or activity is necessary to achieve the goals of a program, policy, practice, or activity may not be used as a defense against a claim of intentional discrimination under this title. (3) In this subsection— (A) the term demonstrates means to meet the burdens of going forward with the evidence and of persuasion