Posted on June 29, 2011

Disparate Impact Realism

Amy L. Wax, Social Science Research Network, May 5, 2011


In Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the Supreme Court recently reaffirmed the doctrine, first articulated by the Court in Griggs v. Duke Power Company, 401 U.S. 424 (1971), that employers can be held liable under Title VII of the 1964 Civil Rights Act for neutral personnel practices with a disparate impact on minority workers. The Griggs Court further held that employers can escape liability by showing that their staffing practices are job related or consistent with business necessity.

In the interim since Griggs, social scientists have generated evidence undermining two key assumptions behind that decision and its progeny. First, the Court in Griggs noted the absence of evidence that the selection criteria in that case (a high school diploma and an aptitude test) were related to subsequent performance of the service jobs at issue, and expressed doubt about the existence of such a link. But research in industrial and organization psychology (IOP) has repeatedly documented that tests and criteria such as those at issue in Griggs (which are heavily “g”-loaded and thus dependent on cognitive ability) remain the best predictors of performance for jobs at all levels of complexity. Second, Griggs and its progeny rest on the implicit assumption, reflected in the so-called 4/5 rule, that fair and valid hiring criteria will result in a workplace that roughly reflects the representation of each group in the background population. Work in psychometrics and labor economics shows that this assumption is unjustified. Because blacks lag significantly behind whites on measures of cognitive ability, most valid job selection criteria will have a substantial adverse impact on this group. The combination of well-documented racial differences in cognitive ability and the consistent link between ability and job performance generates a pattern that experts term “the validity-diversity tradeoff”: job selection devices that best predict future job performance generate the smallest number of minority hires in a broad range of positions. Indeed, the evidence indicates that most valid screening devices will have a significant adverse impact on blacks and will also violate the 4/5 rule under the law of disparate impact.

Because legitimately meritocratic (that is, job-related) job selection practices will routinely trigger prima facie violations of the disparate impact rule, employers who adopt such practices run the risk of being required to justify them–a costly and difficult task that encourages undesirable, self-protective behaviors and may result in unwarranted liability. To alleviate this burden, the article proposes to adopt a new regime of “disparate impact realism” that abandons the 4/5 rule in favor of sliding scale ratios pegged to measured disparities in group performance and the selectivity of particular positions. Alternatively, the disparate impact rule should be repealed altogether. The data indicate that pronounced differences in the background distribution of skill and human capital, not arbitrary hurdles imposed by employers, are the principle factor behind racial imbalances in most jobs. Moreover, blacks lag behind whites in actual on-the-job performance, which indicates that employers are not unfairly excluding minorities from the workforce but rather bending over backwards to include them. Disparate impact litigation, which does nothing to correct existing disparities and distracts from the task of addressing them, represents a cumbersome, misplaced effort that could better be directed at the root causes of workforce racial imbalance.

[Editor’s Note: A draft of the full paper is available here. The final version is forthcoming in the Winter 2011 issue of the William and Mary Law Review.]

21 responses to “Disparate Impact Realism”

  1. Question Diversity says:

    While sliding scale ratios would be better that what we have, I wouldn’t even want to do that, because I don’t buy the premise that employers are “discriminating” against blacks on a systematic basis.

    The Civil Rights Act of 1964 should be amended to do three things:

    1. State clearly everywhere there is a non-discrimination provision or law that no portion of this shall be construed to mandate affirmative action

    2. Instruct the Federal judiciary not to use disparate impact as prima facie evidence of discrimination, period

    3. Instruct the Federal judiciary to apply intermediate scrutiny instead of strict scrutiny to racial classifications (as an aside, the courts use intermediate scrutiny for gender). Now that sounds like ineffectual legalese to the untrained eye, but an NAACP-LDF lawyer reading this will see it for the “threat” that it is, waving the red cape in front of the bull.

  2. ball of confusion, spining faster, chaos! says:

    Our enemies are already planning to head off the disparate impact of inevitable findings of genetics that will make blacks look justifiably undesirable in our communities, schools, churches, businesses, governments, and especially in the seats of our TV news anchors (have you noticed the swarm on your TV?)

    Remember the “dangerous discoveries” salvo? They know what’s coming, and they are spending fortunes to make sure that the results are interpreted in ways that highlight White racism and black oppression, marginalization, exploitation, exclusion, and vulnerability.

    They are positioning race differences as discrepancies that must be addressed with more of your money and a increasing loss of your liberty and security.

    snips from report:

    But one of the dangers of genetic research variation is it can potentially open avenues for scientific racism and genetic determinism, which could in turn underscore stereotypes

    plaguing minority communities.

    Use race and ethnicity (and gender and socioeconomic status) only when the study collects and includes in the analysis data relevant to the underlying social mechanisms.

    Attempt to measure as many alternative variables as possible, including: “racism and discrimination, socioeconomic status, social class, personal or family wealth, environmental exposures, insurance status, age, diet and nutrition, health beliefs and practices, education level, language spoken, religion, tribal affiliation and country of birth.”

    How can discrimination stemming from future discoveries be prevented?

    How can I talk about genetics with my doctor in order to get the most health benefit?

  3. Anonymous says:

    Just when one had given up any hope of something intelligent on the subject of race coming out of an American university, comes this piece, scheduled for publication at William and Mary Law Review.

    “Because blacks lag significantly behind whites on measures of cognitive ability, most valid job selection criteria will have a substantial adverse impact on this group.”

    A reminder of the enormous gap in cognitive ability between blacks and whites on even of entering the job market or of applying for admission to a college or university:

    “By the time [minority students] reach grade 12, if they do so at all, minority students are about four years behind other young people. Indeed, 17 year-old African American and Latino students have skills in English, mathematics and science similar to those of 13-year-old white students.” (Education Trust, “Closing the Achievement Gap,” National Governors Association Clearinghouse, 2002, 9th paragraph)

    Note the conditional “if they do so [reach 12th grade] at all.”

    Those words means that the black-white achievement gap is “four years” for the above-average contingent of black students still in school by 12th grade. The below-average contingent of black students (half of the age cohort) have already dropped out.

  4. on the lam from the Thought Police says:

    Because Southern whites did not want to pick their own cotton we are burdened with a race that will become increasingly burdensome as the intellectual requirements of jobs continues to increase.

    At the very least we should stop subsidizing the illegitimate reproduction of that race with welfare, and we should forbid more members of that race from immigrating here.

    It would also be a good idea to emphasize long prison sentences at hard labor. They cannot breed if they cannot fornicate.

  5. elitist says:

    Bottom line:

    If blacks with IQs of 80 (90,100,110, etc.) are as successul as whites with the SAME IQ then there is NO discrimination in the US at all (except quotas in favor of blacks).

    I predict that an honest study will show that matched for IQ, blacks are MORE successful than whites, have MORE academic degrees & higher incomes.

    For the better art of a century, blacks have had every conceivable advantage in the US.

    They have crashed into a brick wall: their own intellectual limitations.

  6. Anonymous says:

    I just did a search on Amy Wax. She wrote a book called “Race, Wrongs and Remedies.” It might be worth picking up.

    “Black Americans continue to lag behind on many measures of social and economic well-being. Conventional wisdom holds that these inequalities can only be eliminated by eradicating racism and providing well-funded social programs. In Race, Wrongs, and Remedies, Amy L. Wax applies concepts from the law of remedies to show that the conventional wisdom is mistaken. She argues that effectively addressing today’s persistent racial disparities requires dispelling the confusion surrounding blacks’ own role in achieving equality.”

  7. sbuffalonative says:

    Alternatively, the disparate impact rule should be repealed altogether. The data indicate that pronounced differences in the background distribution of skill and human capital, not arbitrary hurdles imposed by employers, are the principle factor behind racial imbalances in most jobs. Moreover, blacks lag behind whites in actual on-the-job performance, which indicates that employers are not unfairly excluding minorities from the workforce but rather bending over backwards to include them.

    We all know that the claims surrounding ‘disparate impact’ are a crock. Test today are 100% race neutral. They involve reading comprehension, memory, and reason.

    As this piece notes, even when hired, blacks still lag behind whites so the ‘disparate impact’ of the test is realized in the performance of blacks. The only ‘disparate impact’ is that inherent in blacks.

  8. Martin L. Kuhn Jr. says:

    I used to work for an Engineering company in Macon, GA that did a lot of work for Cooper Rubber in Griffen, GA. Cooper had been sued for not having a workforce that reflected Griffin’s nearly 50% Black population, so they had to darken up their facility in a hurry.

    Shortly after strengthening their workplace with a diverse workforce, Cooper supervisors realized that a lot of expensive changes were needed to keep up with the employees that the courts had blessed them with.

    That particular Cooper plant manufactured rubber window and door seals for automobiles, so theft was not a big problem, but the new employees knew that firing them would pose a problem for the company, so they tended to bunch up and talk most of the day. The solution was security cameras for every work station and employees to watch the monitor screens.

    One day one of the monitor watchers observed a Black female purposely cut off two fingers in a guillotine-like trimmer that sheared the flashing off large rubber seals. They could tell it was on purpose because the woman pulled her fingers clear of the blade three times before she mustered the courage to let the deed be done.

    The mangled employee didn’t get the down payment for a new car like she was hoping for, but her actions prompted Cooper to hire the company I worked for to design, manufacture and install braking systems and enclosures equipped with light screens for every machine in the plant. The systems we developed instantly stopped the machine every time an ebony hand attempted to reach through the light screen for some free money.

    The work we performed for Cooper cost them over $750K that could have gone towards pay raises and benefits for employees if Cooper had been allowed to keep a Whiter workforce.

    That was nine years ago. I would be willing to bet a two fingers that since they got sued for hiring only qualified workers, Cooper has probably lost enough in productivity and spent enough on added security measures to have moved the plant to a Whiter community rather than complying with the court’s demands.

  9. SKIP says:

    ” and especially in the seats of our TV news anchors (have you noticed the swarm on your TV?)”

    YES! the black male is always accompanied by a White woman. Equality posters in the U.S. military ALWAYS display a black male and a White woman! No matter what the poster is about, to include the “rape and sexual assault are UNLAWFUL” WELL!! black male and White woman is probably appropriate for the rape posters since to my knowledge ALL of the rapes on camps of which we become aware (the military covers them up more than sand covers Saudi Arabia) are black male white woman rapes

  10. Dave says:

    ~Question Diversity

    I think the result you seek would be much better achieved through repeal of the 1964 Civil Rights Act (and all similar legislation) rather than amending it. The wording of the Act itself is not the problem; rather it’s the Court’s extrapolation from the Act absurdities such as the “disparate impact” test that is the problem (this same court has gone so far as to coin self-contradictory terms such as “reverse-racism” and “unintentional-discrimination”). And, furthermore, once enacted, Congress may not instruct the courts to interpret the law in any particular way, so repeal of bad legislation is the best way to go.

    Personally, I don’t object to employers hiring inferior candidates and promoting less productive employees so long as those same employees have no possible redress for “discrimination” under the law. If McDonald’s wants to hire a Black spokesperson to represent their brand, that’s their business; and if Abercrombie and Fitch wants to limit their hiring to only White models and only White store clerks, that’s their business, too.

  11. Anonymous says:

    #3 “if they do so [reach 12th grade] at all.”

    Wow, I was unaware of that. That is a huge gap. White students are having their education sacrificed to satisfy the pc crowd.

  12. Anonymous says:

    Hey guys, stop being so racist. It’s the White man’s fault that the average Black brain size is smaller than that of Whites and Asians. Racism causes their brains to shrink. It’s not genetic or anything.

  13. Henry Clay says:

    This is refreshing. I cannot believe that the guardians of equalitarian orthodoxy will let this pass without trying to silence Ms. Wax and to pressure the William and Mary Law Review into dropping the article. I hope against hope that the academy is finally growing weary of denying the palpably obvious. By contrast to William and Mary, remember the poor woman student at Harvard Law School who ventured to say in a private e-mail that she thought that blacks–as a whole–may have less intelligence than whites. A jealous classmate squealed on her and the law student was hounded into a public retraction by law school dean Martha Minow who acted like she (Minow) was running a mini-police state.

  14. WR the elder says:

    In response to #1, Question Diversity, the Civil Rights Act of 1964 prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. But of course our government only enforces the parts of the law it wants to enforce. So discrimination against whites is both allowed and very often mandated.

  15. Anonymous says:

    4 – on the lam

    Around the turn of the 19th century one in five households in New York City owned slaves, and the institution was not completely eradicated there until the early 1850s.

    And there’s a lot of old money in the NE states that was made from the slave trade. Every once in awhile law suits crop up where blacks attempt to extract reparations from these folks.

    Slavery existed under the US flag far longer than it did under the Confederate flag, and the people who actually brought the blacks here were yankees.

  16. Question Diversity says:

    10 Dave:

    Repeal is an obviously better solution, but a non-starter at this time. I think my reforms are the absolute best we could get out of even the hardest right Congress the American body politic could possibly elect in the near future.

    I don’t know about Congress not being able to build in interpretations or constructions of its own legislation into the language of the bill. “No part of this shall be construed/interpreted to mean…” is language that appears in a lot of bills and laws. Furthermore, Congress can limit and remove items from the Fed Judiciary’s jurisdiction.

    Constitution, Art 3 Sec 2:

    In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    Bold emphasis mine. Too, remember that the Supreme Court is the only level of the Federal judiciary that is Constitutionally required to exist, Congress has the right to create and eliminate lower branches at will. Therefore, it can definitely tack on jurisdiction limits to the legislation creating those courts, and Congressional self-interpretation of legislation can be construed as an A3S2 Congressional regulation of the Supreme Court.

    Plain words, nobody died to make the Federal Judiciary God over the interpretation of legislation. Congress has it, the President has it in his or her discretion to enforce laws, and citizens who are legally permitted to serve on juries have it with the ability to pass judgment on the law itself. George Washington didn’t lead a bunch of barefoot soldiers across the icy Potomac for one person to have that much power, and neither did he do it for nine people to have that much power.

  17. Sardonicus says:

    It looks like that Amy Wax needs to be sent to a facility for re-education for her politically incorrect views. She can join Michael Levin and Rabbi Mayer Schiller in being cast into outer darkness:

    I’m surprised this scholarly article was published and that courageous Amy Wax remains unpunished in academia?

  18. Enough says:

    On the lam wrote “Because Southern whites did not want to pick their own cotton we are burdened with a race that will become increasingly burdensome as the intellectual requirements of jobs continues to increase.”

    You forgot to mention “Because New England ship owners and New York bankers made a fortune in the slave trade.” But I’ll let that old dog lie. What we should be thinking is because many middle class homeowners can’t be bothered to mow their own lawns, because the fast food industry has an insatiable appetite for cheap labor, because contractors value the hard work and cheap wages of illegal immigrants, because the Democrats want votes, because the Republicans want cheap labor all around and teenagers don’t want to work anymore we are importing a huge population of hispanics who have already overtaken the blacks as the largest American minority group we are currently creating a problem for future generations that will make the African freed slaves look like a relatively insignificant issue.

    Once again individual greed has taken short term personal profits by using alien cheap labor and created a huge long term financial and social drain for our country as a whole.

  19. john says:

    I believe a fair resolution of this matter would be to form a government-owned airline to transport members of the administration, their families, all members of the congress and their dependents, on all trips of more than three hundred miles.

    The cockpit crews of this air-carrier service would be all black, with special selection preference given to those drawn from inner-city environments.

    Our elected officials should lead by example, and this initiative would put to rest any allegations of cognitive shortcomings in blacks.

    “Gulfstream four-two-November, turn left heading two-one-zero, descend and maintain six thousand, slow to two hundred, expect lower at SNAPY intersection, contact New York Approach on one two six point seven.”

    “Huh, what he say?”

    “Ah, New Yawk Approach, we do all dat stuff, an’ keep everbody else out de way fo’ us.”

  20. Ciccio says:

    It is of course nonsense to even dare suggest that Blacks are in any way inferior to Whites in terms of academic ability. This is merely he result of colonialism. Milton Obote, first president of Uganda articulated this succinctly when he addressed parliament thus: “The colonialists have arrested the mental development of our people”. How was never made clear, this was obviously an MI6 operation, so secret that not only has it never been revealed but poor mental development is still languishing in some royal dungeon somewhere.

  21. Stop Racism says:

    These were good boys just ask their momma if you can find her when she isn’t high.

    Most had just found J**sus that morning and have turned their lives around.

    That kid beaten to a bloody pulp Must Be Racist if he can’t find it in his heart to forgive these fine young black males who beat him for no reason other than he was a lone white person and left him on the street to possibly die.