I have two objections to this type of “discrimination”. 1. If you’ve made decisions that are not at all based on race/religion/gender etc. but that happen to have a disparate impact on such groups, I don’t see the harm in it. What difference does it make whether some group or other now has more or less advantages? That’s the way the ball bounces. If an individual is not hired or promoted or whatever because of their race/religion/gender, then that person has been harmed, and for a reason that is not just. But if it happens to turn out that some policy or other produces more advantages for one race/religion/gender than the other, I don’t see why this should be a problem.
It seems to be selectively enforced. While it’s just as illegal - for the most part - to discriminate against white male WASPs as against black female Jews, it does not seem to be considered a problem in adopting policies that have a disparate negative impact on the former groups, while it is very much so in the case of the latter. And in the aggregate that actually adds up to actual discrimination based on race/religion/gender against the latter. Because if 50% of random policies discriminate in one direction and 50% in the other, if you outlaw only one type and not the other, the overall impact is to discriminate in one direction.
First, the reason such claims exist is to deal with pretense situations. It prevents discrimination at one step. If the qualification requested, for example, is unrelated to the job requirements, and it is overwhelmingly held by people fo a particular race, then asking for that qualfiication isn’t a way of getting the best people for the job, it is a way of getting people of that particular race without listing “no blacks” in the ad.
And as to your second point. White male WASPs simply aren’t discriminated against in any significant fashion in the employment arena. It just doesn’t happen.
The main problem with dealing with discrimination is the that motive is hard to prove. A sign that says “No Jews need apply” is pretty obviously discrimination. But what about a policy that requires employees be available to work on Saturday, but not on Sunday? Only the Shadow knows what evil lurks in the heart of men (and women), but a reasonable judge or jury can see the effects of a policy.
Not all disparate outcomes should come under legal sanction. If the policy has a legitimate and necessary purpose (weight carrying requirements for firefighters for example) then they should be left. There are also legal exceptions for affirmative action. We can argue all day about whether or not it is necessary and/or helpful, but it exists and there is evidence that it is stillnecessary (warning: second link is a pdf).
The problem with seeing no harm in policies with disparate racial impacts is that humans can discriminate subconsciously. Like the article says, if you require people to show proof of ID to vote, a seemingly very rational law, you run the risk of poor people and minorities not having any ID. Hell, if I didn’t have my driver’s license, I would not have any form of picture ID on me on a regular basis. Poor people without cars, then, would be prevented from voting in that situation. And anything that takes away a person’s right to vote, and the right to change their government, is bad, even if the alternative is no ID. They’ll just have to find some other way of enforcing it.
WASPs are not born with an inherent disadvantage than black female Jews, or other minorities. Therefore it is less of a priority to prevent their discrimination than it is to prevent the discrimination of the BFJ. Of course some conservatives (maybe even on this board), will immediately jump to the conclusion that I said it is ok to discriminate against white people. If they make that argument, I will simply laugh in their face and ignore them; my words are clear enough, not my problem if they are too stupid to understand it.
I grant the argument (made by both villa & Strassia) that ostensibly neutral qualifications can be a cover for discrimination. But I think requiring the discriminator to prove that the qualifications are reasonable is too extreme a measure to counter this. Rather the burden of proof should be on the Justice Department (or plaintiffs, in a civil case) to prove that the qualifications are not legit and therefore they must be used as a cover. There are many commonly held notions that can’t be proved and it’s not discrimination to believe in them.
I’ll try to think of one, but do you really deny this? It seems to be universally understood that statistical fluctuations occur and it would follow that anything could randomly have a negative impact on one or another racial/religious/gender group.
Off the top of my head, let’s take a requirement that cops live in local communities. (You could argue that it has a valid basis, but I don’t know if this is just prevailing common sense or if it’s ever been proved. But in any event, the concept seems obvious, as above, so I’m not sure what we’re arguing about, if anything.)
I really am not sure you know what disparate impact litigation is like, to be honest, hence I wanted to see what you thought was keeping the white man down.
And I can definitely see a requirement that cops live in the community in which they patrol as being a potentially valid job requirement. I can also see the argument the other way, of course. I have no idea what concept you are talking about which is obvious to you, and given past things you have found obvious, I am not sure we will agree on it.
It doesn’t have to be the way the ball bounces, though. I think people generally agree that this kind of discrimination is unfair and a negative for society.
Because it is impossible to address inequality without dealing with these kinds of disparate impact issues, and most people are supportive of that goal even if they differ widely on what it means and how it should be done. Basically I would say that ignoring disparate impacts is akin to paying attention to the law while ignoring the concept of justice.
How would the Justice Department do that exactly? How could you prove that a policy was designed to be discriminatory? Just ask? Who would be stupid enough to leave a paper trail for something like that? I was watching Newshour last night and they did a piece on people waiting in line at the unemployment office. They spoke with an older black man who lost his executive position. When he he interviewed for another jog he was told they already had enough “coloreds” so the boss didn’t want him. When he informed the interviewer that that statement and policy was legally actionable, she replied “prove it.” how can he? (There is a link to an .mp3 on this page under looking for work, but I could not get it to work.)
This dovetails in to an issue I, and many others, have had with the definition of racism. In common usage it usually is applied to motivation, while the term of art in political science has to do with outcomes and power relationships. This causes a lot of confusion at the interface as someone who does not consider themselves a racist can support a policy that is technically racist. Then we all argue about the definition instead of discussing the policy.
If some policy that is not necessary has a predictable (even if only in hindsight) effect on a specific group, it should be changed. Work at a pork processing plan is always going to have a disparate effect on Jews and Muslims, but it is necessary for the business to function. Requiring workers to go to team building or training events on Friday evenings or Saturdays is not. If a company fines all employees that are late for work and it happens that more women than men get fined because women tend to deal with children issues more, then that is (retroactively at least) predicable. If it happens that Hispanic mean are 10% more likely to be late than white men at that particular company, then it should not actionable because there is not predicable reason for that to happen.
Unless you’re saying that it’s a cover for actual discrimination again, I don’t see it. To the extent that any group is not deliberately discriminated against, then it’s just a matter of happenstance that the group is affected, and since a group is not a real victim, there’s no harm.
I addressed that (in the section you quoted). If it can be shown that such-and-such policy does not have a legitimate purpose then it can be considered to be a cover for discrimination. What I’m objecting to here is the burden of proof being on the other foot.
Except proving “there is no legitimate purpose” is next to impossible. Asking people, if they have a requirement that significantly impacts the level of diversity in their workforce to demonstrate why such a requirement is necessary is much more rational, and, if the requirement is necessary, shouldn’t be too difficult.
Come up with those examples where the white man is oppressed yet?
Intent to harm is not necessary for harm to occur. If I use dynamite to remove a tree trunk in my yard and it blows up your sewage line all the way into you house, did I cause you harm? Now if the city plans showed your sewage line was in a different place, or you sewage line just happened to break after I blew up my trunk, then I may not be liable. But if you could show that my dynamite caused your line to blow it would be up to me to prove that I took every reasonable precaution and that no better option was available.
Ok, say I am a prosecuting/litigating attorney. Company AYZ has a policy in place that causes women to receive, on average, 10% smaller raises every year. I request to see the policy and ask the purpose. If it does not seem necessary to me (and possibly my consultants) I bring suit and present my reasoning. Company AYZ counters with why the policy does have a legitimate and necessary purpose that could not be served with a gender neutral alternative. Jury and/or judge considers the arguments and makes a decision. What do you think is wrong with that?
The burden of proof is on the plaintiff to prove disparate outcome and that stated reason is not legitimate and necessary. It is up to the defense to challenge the disparate outcome as random, or to prove the reason is legitimate and necessary.
To continue with my analogy above, if it is shown that using dynamite to remove stumps n my yard causes damage, it is up to me to prove that I need to remove the stumps and the only way to do is dynamite. Otherwise, even if I am not liable for past damages, I would not be allowed to continue.
You’re now restricting the definition of discrimination to only the type that fits your thesis. “Discrimination” in this situation does not only mean deliberate prejudice by individuals. Your argument basically boils down to “the consequences of my actions don’t count unless you can prove I acted intentionally.” This is silly, and for good reason we don’t follow that rule in everyday life.
In the U.S. I think we’ve long since reached a point where institutionalized discrimination has a greater effect on the lives of most people than personal bigotry.
Laws and policies are not acts of God and can’t be described as happenstance. And the individuals in the group can be victims, so the last part of your statement doesn’t mean anything.
Improve schools? Design a less biased test? Ditch the concept of standardized testing? If there’s a reason none of these would work I’m interested to hear it.
Disparate impact can come under a number of guises. Take the Hyde Amendment regarding federal money for abortions in Washington DC.
As is, the ban has a disparate impact on black women in DC. But if you lift the ban, you now have a policy in which the end result is a disparately higher number of black pregnancies being aborted, which doesn’t sound so nice either.
Understood. I wasn’t saying there was no harm because it wasn’t harmful to the group, but because the group is not an entity that can suffer harm (at least that anyone should care about it). Again, this is leaving aside the issue of whether it’s a cover for genuine discrimination.
I’ll try an example. There are 10 Christians and 10 Jews in the job pool, with 10 available jobs. The employer announces that preference is given to people who were born in this state. Assume that it’s unclear whether this serves a genuine purpose and the company seems to believe it’s a legitimate requirement. 8 of the Christians and 5 of the Jews fill this requirement. This requirement has a disparate negative impact on Jews. But Jews are not a meaningful category for purposes of assessing harm, because
religion is not the basis for the requirement. Any individual Jew is either harmed or not harmed based on birth location, which is also true of every Christian. This would also be true if the number of Jews who met the requirement was the same as the number of Christians.
If in truth the requirement is not really necessary, then anyone born out of state is losing out for no valid reason. But this type of discrimination is not illegal, and applies to everyone.
The only relative harm is to the general category of Jews. I disagree that there’s any moral issue with relative harm coming to the general category of Jews (or any other group). There’s no reason that every group has to be collectively as well off as every other group.
When it becomes an issue is when the basis of the discrimination is the race/religion/gender itself (whether stated or unstated). In that case, actual real people are being harmed unjustly, since they are being denied opportunities based on their race/religion/gender. But that’s not the case here.
(Marley23, I believe this addresses your post #15.)
Perhaps I’m wrong about the law, then.
Suppose I’m on the jury and I think the disparate outcome is proved but all arguments about the necessity of the requirement - both for and against - are flawed, so I am left with no good sense whether the requirement is in fact necessary. How am I supposed to vote? My impression is that I vote against the company. Is this incorrect?