A few days ago Mickey Kaus linked to a recent post of mine critical of disparate impact as part of his own criticism of the “smug, reified apocalypticism” of Stanford law professor Richard Thompson Ford’s Chicken Little overreaction to the Ricci decision.
Kaus quoted my observation —
[T]he solution to this dilemma is conceptually (if not politically) easy: demote disparate impact to its proper role, which is suggestive evidence of the possibility of disparate treatment, a possibility that can be successfully refuted by an employer’s production of credible evidence that the challenged test, policy, or procedure bears a reasonable relationship to the organization’s activities. (Of course, credible evidence that an employer adopted even such a reasonable test for a discriminatory purpose would also be barred as disparate treatment.) [boldness added by Kaus]
— and asked, “Would that be so terrible? We couldn’t live with that?” I suppose that depends on who “we” are.
I’ve been taking my time preparing some comments of my own on Kaus’s nice points and especially on Prof. Ford’s article (my editor is rather lax with deadlines), but now Kaus has gone and done it again (1:40 A.M. Sunday, or would that be today?):
I’ve never understood quite why the Ricci case was considered to have ”bad” facts by defenders of Title VII’s “disparate impact” standard for judging employment tests. Ricci involved a new test, designed by consultants. The worst case, for the defenders, would be if New Haven had thrown out a traditional test that had been accepted for years as job related, no? …. Would this freshly concocted multiple choice exam have met the less stringent Rosenberg Standard (a “reasonable relationship to the organization’s activities”)? I assume yes. But would it have been crazy for the New Haven authorities to decide “no”?
First, thanks to Mickey for those two links, and welcome to any readers they may have sent this way. I would say something nice about Kaus here, about how he’s living proof that not all Democrats are deranged on matters like disparate impact, but I will refrain since praise from these quarters will serve only to increase the temperature of the hot water he’s already and always in with his Dem comrades.
So for now a Ford will have to remain in our future, since Kaus’s question is a good one and deserves a response before I’ve finished crafting comments about Ford’s Edsel-like views on civil rights.
To respond quickly I conducted an instant poll of the Rosenberg Standard Board of Test Examiners (which is to say, asked my wife), and our preliminary answer is no, it wouldn’t have been crazy to reject the new test, if the test had been rejected before the results of taking it were known or it had been rejected for reasons other than the racial composition of the group of those with high scores.
The test of job-relatedness, that is, cannot be the race of the winners and losers. That common-sense observation (or so it seems to the Rosenberg Standard Board) would, if widely acknowledged, do in disparate impact.
It would appear, however, that no test can pass muster with the more extreme disparate impacters. Consider the New York Times OpEd by Lani Guinier and Susan Sturm that I criticized here two days ago. As I noted there,
[t]heir central complaint is with “the capacity of paper-and-pencil tests to gauge a person’s potential on the job.” Moreover, they claim, “[e]xams like the one the New Haven firefighters took are neither designed nor administered to identify the employees most qualified for promotion.”
That is a remarkable claim for which they provide no evidence. Do they really believe such tests are designed and administered (in New Haven’s case, by multiracial teams) to weed out minorities? If not, what do they think such tests are designed and administered to do? They don’t say. They are willing to admit that “[p]eople who excel on such a test may expect to be promoted.” Silly them, since according to our experts on firefighter exams “testing should not be about allocating prizes to winners.” What should it be about? They don’t say.
A test without a winner, if I can appropriate and adapt Gloria Steinem’s old line, is like a fish without a bicycle.
