What is the test for the defense of legitimate non-Discriminatory reasons in the context of AHDC's disparate impact claim?

The special verdicts approved by the district court instructed the jury that as to question 11, the jury was considering the "Defense of Legitimate Non-Discriminatory Reasons." While AHDC objected to this jury instruction as to its separate claim of intentional discrimination, it did not object to instructing on this defense in relation to its disparate impact claim. Failure to object to an instruction waives the right of review. Bird v. Lewis & Clark College, 303 F.3d 1015, 1022-23 (9th Cir.2002).