Affirmative action in the workplace

Here is an excerpt from the 1994 book The Bell Curve
by Richard J. Herrnstein and Charles A. Murray.
Some of the emphasis is added.

Appendix 7
The Evolution of Affirmative Action in the Workplace

Much of the current debate about affirmative action in employment
takes place in ignorance of
the original objectives of affirmative action and
the ways in which antidiscrimination law has evolved.
Because we believe that
returning to the original intention of affirmative action
is a key to progress in social policy on many fronts
and because
our recommendation seems so radical in the prevailing context,
this appendix presents a full discussion of
the nature of the original objectives and
the evolution as it pertains specifically to employment tests.

Affirmative action in the workplace,
as distinguished from the broader and older civil rights movement,
starts with Title VII of the Civil Rights Act of 1964.
Title VII laid down principles of fair employment practice
as regards race, religion, national origin, and sex
and it created the Equal Employment Opportunities Commission (EEOC)
to administer and promote them.
Besides Title VII (as amended over the years)
affirmative action in the workplace comprises
subsequent acts of Congress (and state legislatures),
presidential executive orders,
rulings by the EEOC and other branches of government,
and landmark court cases.
The basic intent of all of this energetic policymaking has been
to make workplaces fairer to people from oppressed or mistreated groups.

As desirable as that goal may seem to just about anyone,
a clear notion either of what it means or how to accomplish it
does not emerge
from the documents of this enormous (and spreading) battleground
of law, regulation, litigation, and commentary.
The good news is that many issues of fair employment practice
need not concern us here.
[But, in a note, the authors recommend Forbidden Grounds by Richard Epstein.]
But we cannot avoid looking at how Title VII (and its elaborations)
dealt with
the use of ability tests in the selection or promotion of employees.
Although the tests were given to individuals,
the groups of which they are a part may average high or low
compared to the population as a whole;
as it happens, some of the groups who average low
are protected from “unfair employment practices” by Title VII.
Hence the government gets into the business of regulating employment testing.

The ramifications of even the narrow issue of employment test regulation
have ranged so far and wide that
employment testing has become a new specialty
in the creation of law and in government regulation
undreamed of by the Founders.
Thousands, perhaps millions, of legislative and bureaucratic man hours
have been lavished on it.
Thousands of cases have been argued in court.
Doubtless many more cases have not been argued,
as the specter of legal action has shaped innumerable decisions
in corporate offices and boardrooms
[and government offices (Ricci v. DeStefano)].
The stance of the government and the courts has increasingly been
to distrust tests that produce group differences,
as if they presume that, in the absence of illegal discrimination,
the groups should be equal.

Section A7.1
The Evolution of Title VII

Title VII of the 1964 act
specifically did not prohibit the use of employment tests,
provided that the tests were not “designed, intended or used
to discriminate against people because of
their race, color, religion, sex, or national origin.
It said nothing about group differences,
although it was clear in 1964 that ability tests would result in
disproportionately fewer high scores for at least some of
the groups of people protected from discrimination by the act.
Some of the act’s proponents believed that
some of the group differences in test scores were being used as
a pretext for unfair discrimination;
for that reason the act included a proviso regarding the tests.
The hope was that Title VII would promptly eradicate this unfair use of tests.
It was left to the EEOC to come up with the means of doing so.

In 1966, the EEOC formulated the first of a series of guidelines.
An employment test, it ruled,
had to have a proven power to measure a person’s
“ability to perform a particular job or class of jobs.”
It was not enough, said the guideline,
that the test be drawn up by professional tests;
it also had to have some practical import—
some “job relatedness,” in the evolving jargon of the field.
Why this particular guideline?
The answer is that staff for the newly launched EEOC
had quickly become convinced that
some employers were, as anticipated,
hiding behind the credentials of professional testers
to use ability tests that had little bearing on job performance,
and that they were doing so to discriminate against blacks.
The guideline was an attempt to pierce the veneer of professional respectability
and thereby correct this violation of law and principle,
as the EEOC saw it.

The criterion of job relatedness
did not resolve the uneasiness about testing for the EEOC.
Ability testing for employment had, after all,
become an issue under Title VII because
various groups of people get different average scores.
This was the heart of the matter,
and new guidelines laid down in 1970 addressed it frontally.
For the first time,
EEOC guidelines mentioned the issue of
disproportionate success of different groups on any given test.
When a test “adversely affects”
(more jargon, along with disparate impact or adverse impact)
members of a protected group, said the new guidelines,
it had to be shown not only that
the test really did predict job performance
but that
the prediction was strong enough to make a significant economic difference
and that no nondiscriminatory alternative was available.
An employer, the reasoning went, may have abandoned older and cruder forms
of deliberately discriminatory treatment of workers of job applicants
(often called disparate treatment)
but still be violating the intent of the law
by using a needlessly discriminatory test.
Disparate impact, in other words, was to be
the red flag that set the EEOC in motion.

Section A7.2
Griggs and Afterward

Soon after, the U.S. Supreme Court entered the fray.
Applicants for certain desirable jobs at the Duke Power Company
had been required to have a high school diploma
or to earn ability test scores above a cutoff.
Fewer blacks were getting over these hurdles than whites;
a suit found its way to the Supreme Court.
The Court’s decision in Griggs v. Duke Power Co.
was instantly recognized as a turning point
in the march of affirmative action in the workplace.
The Supreme Court struck down the use of
either the tests or the educational requirement,
because the company was unable to satisfy the Court
that either a diploma or a high score on a test
had any bearing on the jobs the applicants were being hired for.

Duke Power Co.’s defense was, among other things, that
it was trying to raise the general intellectual level of its work force
by imposing educational or ability test score requirements.
In the Court’s unanimous decision
(which reversed contrary opinions in
both the federal district and circuit courts),
Chief Justice Warren Burger
approved unstintingly of the EEOC’s guidelines:
Adverse impact placed a burden of proof on employers to show
not just that they were not intentionally discriminating
against the protected groups
but that their testing procedures could be justified economically,
and that no other available hiring procedure is equally useful
but less discriminatory.
Said the Court,
good (i.e., nondiscriminatory) intentions do not excuse tests
“that operate as ‘built-in headwinds’ for minority groups
and are unrelated to measuring job capability.”
There must be both “business necessity”
and a “manifest relationship” between the test and job,
as the EEOC had ruled.
Employers were being told to be wary of off-the-shelf tests of general ability;
if they wanted to use a test at all,
they would be well advised to write them for the specific job at hand
and to do their own validation studies.

Ordinarily there is some presumption that people will obey guidelines
proposed by a federal agency like EEOC,
but not doing so does not violate the law.
Indeed, in the legislative record,
Congress was assured that the EEOC had no enforcement powers.
However, the Court in Griggs said that
the EEOC guidelines deserve “great deference,”
which endowed them with authority verging on the power of law itself.
This laying on of the hands of legality is one reason
that Griggs has become the landmark case it has turned out to be,
for only a defiant or reckless employer would disregard guidelines
that the Court embraced so enthusiastically.
Beyond that, however, Griggs transformed
the very conception of affirmative action in the workplace.

The Court grounded its decision in the 1964 Civil Rights Act itself,
although the act said nothing about
job relatedness, adverse impact, or the lack of alternative hiring criteria.
The act did, however, say that a test must not be “designed, intended or used” to discriminate against people in the protected minority groups.
Like the EEOC, the Court considered job relatedness and adverse impact to be reasonable translations of Title VII’s principles into practice.
But it can be argued that job relatedness and disparate impact per se
go well beyond Title VII,
because a test may have disparate impact
and not be specifically related to the particular job being filled
without the employer’s having designed, intended, or used it
for discriminatory purposes.

The issue hinges on whether each of these three terms—
“designed, intended or used”—
must signify discriminatory intent
(i.e., the guilty mind usually required in cases of liability)
or only the first two.
The first two terms—“designed, intended”—
clearly imply discriminatory intent.
Must the third?
No, said the Supreme Court, “used” need not.
And if it need not, then an employer is violating Title VII
even if he is not guilty of discriminatory intent,
so long as the test has disparate impact
and has not been proved, to the Court’s satisfaction, to be job related.

After two decades in force,
the Court’s interpretation may seem correct to many readers,
but both the legislative record and the wording of Title VII belie it.
Proponents of Title VII, on the floor of Congress and elsewhere,
repeatedly assured the opposition that
tests administered without discriminatory intent,
however adverse their effects,
were not being challenged, let alone banned.
For example, in a memorandum submitted by Senator Clifford Case,
one of Title VII’s leading advocates during the legislative debates,
we find the following assurance:
“No court could read Title VII as requiring an employer
to lower or change the occupational qualifications he sets for his employees
simply because fewer Negroes than whites are able to meet them.”
Senator Hubert Humphrey, as we noted in Chapter 20,
also assured fellow legislators
that Title VII would never be used to impose percentage hiring requirements (disparate impact criteria) on employees.

A year later, in the Equal Employment Opportunity Act of 1972,
Congress spoke for the third branch of government,
allying itself with the Court and the EEOC.
It disapproved of mere “paper credentials” (such as cognitive ability test scores)
that are of “questionable value.”
It warned that such credentials
burdened people who were “socioeconomically or educationally disadvantaged”
with “artificial qualifications.”
When it first enacted Title VII in 1964,
Congress on the whole trusted general ability tests
to serve the purpose of predicting worker quality;
by 1972, Congress, echoing Griggs,
had become far more skeptical of the predictive power of those tests
and suspicious that they were a pretext for illegal discrimination.
In the words of one legal scholar,
“The central rationale of the Court’s decision in Griggs ...
was based on an assumption that those of different races
are inherently equal in ability and intelligence,
and on a deep skepticism about the utility of devices traditionally used
to select among applicants for employment.”

With all three branches of government pushing in the same general direction,
affirmative action policies evolved toward
greater reliance on disparate impact as the touchstone of illegality
rather than on discriminatory intent or disparate treatment.
As in Griggs,
the Supreme Court in 1975, in Albemarle Paper Co. v. Moody,
considered a case in which
an employer used intelligence tests (among other criteria)
to select workers for well-paying jobs.
Once again,
black applicants, who earned lower scores than white applicants,
brought suit.
The Court reaffirmed the general outlines of Griggs,
but in filling out details, it provided three steps to follow in proving that an employment test was in violation of Title VII (as amended).
  1. A complaining party must show disparate impact.
    This involved a statistical proof that
    those who were hired or promoted on the basis of the test
    included significantly fewer members of a protected group
    than random selection from the applicant pool would have produced.
    Given this proof of disparate impact,

  2. the burden of proof shifts to the employer,
    who must now prove that scores on the test
    have a proven and vital relationship to
    the specific job they were hired for.
    The criterion expressed in Griggs, “business necessity,”
    was carried forward into Albemarle.

  3. If the employer passes this hurdle,
    the complaining party can offer evidence that
    the employer could have used a different hiring procedure,
    one that was as effective in selecting workers,
    but without the disparate impact.
    If this can be shown, then, the Court ruled,
    the employer has been show to have discriminated illegally
    by failing to have used the alternative procedure.

Other federal authorities besides the EEOC
were monitoring and promoting affirmative action in the workplace.
In the mid-1970s, as inconsistencies began to crop up,
pressure built up for coordinating as broad a slice of the federal involvement in affirmative action as possible.
After some false starts,
the Uniform Guidelines on Employee Selection Procedures
were adopted in 1978 by
the Civil Service Commission (later called the Office of Personnel Management),
the Department of Justice,
the Department of the Treasury, and
the Department of Labor.
At this writing [1994], they are still in force.
The Court’s decisions in Griggs and Albemarle
set the broader framework for the Uniform Guidelines,
but further details were elaborated,
in some respects increasing the pressure on employers using tests.
For example, the Uniform Guidelines held—
in contrast to the Court in Albemarle
that the employer
has a responsibility for seeking less discriminatory selection procedures,
a rather different matter from
giving a complaining party the opportunity to do so,
as the Court had decreed.

Section A7.3
Validating Employment Tests

The Uniform Guidelines attempt to define
a unified approach to affirmative action in the workplace,
but practices still vary,
and there continue to be new laws and new interpretations by courts.
But they come as close to a policy consensus as anything does.
They also reveal the underlying assumptions about the facts.
On the matter of test validation,
the Guidelines espouse the stringent “business necessity” requirement
held in Griggs and Albemarle.
They provide detailed requirements for validating tests.
Without submerging our readers more deeply in technical minutiae
than seems appropriate here,
let us say that the Uniform Guidelines lean sharply toward
criteria that would be hard and expansive for employers to meet,
even when cheaper or easier methods almost certain would have been more effective.
General ability tests, readily available and widely standardized,
are rarely acceptable to the EEOC or the courts,
unless the employer goes through the difficult, if not impossible,
and, psychometrically speaking, needless, process of
re-standardization of an established test.
To validate a test, an employer needs a measure of performance.
The government typically rejects
measures of training performance and supervisor ratings.
As Chapter 3 detailed,
both training scores and supervisor ratings
may be suitable measures of performance,
and they are relatively easy to obtain.
The measures usually required by the government
are all but impossible to obtain,
especially for job candidates who are not hired.

Despite an air of rigor and precision in discussing validation,
neither the EEOC nor any other branch of government involved in
administering affirmative action policies
has shown any interest in evaluating
just how predictive of worker performance
the stringent and costly validation procedures it demands are,
or whether there is any gain in predictive power when they are used.
The thrust continues to be, as it has been from the beginning,
to increase the numbers hired or promoted from the protected groups,
based on the underlying assumption that,
except for discrimination or the legacy of past discrimination,
the protected groups should be
equally represented across the occupational spectrum.

Section A7.4
Disparate Impact

According to the Guidelines,
an employer that comes under their jurisdiction
can expect to be required to validate a test—
that is, to prove its business necessity—
if there is disparate impact.
And, the Guidelines further say, disparate impact is assumed
if selecting employees by the test violates the 80 percent rule,
explained in Chapter 20.
As helpful as it may be to employers and regulators
to have a fixed standard for disparate impact,
the 80 percent rule is psychometrically unsound
because it sets a fixed standard.
Given two groups with differing average scores
and a cutoff for hiring or promotion,
the ratio of those selected from the lower group
to those selected from the higher group,
given a fair hiring process,
shrinks as the cutoff rises.

Suppose that you are an employer faced with two groups
that are of equal size in the applicant pool.
The higher group averages one standard deviation above the lower on an IQ test,
but the distribution of scores for each group is normal
and has the same variability.
The eighty percent rule fixed the ratio at
eighty hired from the lower group (if it is protected by affirmative action)
per hundred hired from the higher group.
But if you want to establish a minimum IQ of 100
as the cutoff point for hiring workers,
only slightly more than thirty applicants from the lower group would be selected
for every hundred from the higher.
Suppose that you need a work force with above-average IQs,
so you raise the cutoff to an IQ score of 110.
In that case, a fair hiring process could be expected to select
only twenty of the lower group for each hundred selected from the upper group.
If you need a work force with a minimum IQ of 120,
the ratio drops to about ten from the lower per hundred from the higher.
The ratio will continue to shrink indefinitely as the cutoff moves upward.
In other words,
applying the 80 percent rule has drastically different effects
for an employer hiring people for janitorial jobs
compared to an employer hiring lawyers or accountants.
Even if one is in favor of the concept of avoiding “disparate impact,”
the 80 percent rule is an extremely unrealistic way of doing so.

Section A7.5
A Reversal in the Affirmative Action Trend Line, or a Blip?

The Supreme Court in 1989
backed off from its most demanding requirements for employment testing.
In Wards Cove Packing Co., Inc. v. Atonio,
it softened the obligation on the employer
in justifying disparate impact of a test.
“Business necessity,” the Court said,
is an unreasonably stringent criterion,
virtually impossible for most ordinary business to meet.
The result of so extreme a requirement, warned the Court,
would be “a host of evils.”
It was, the Court now said,
enough to show that the test serves legitimate business goals.
It looks as if the Duke Power Co.’s defense in Griggs
to improve the general intellectual quality of its employees—
would have met this new standard.
Soon thereafter, however, Congress retaliated.
The Civil Rights Act of 1991 repudiated Wards Cove and
returned to the standards of Griggs and Albemarle
to business necessity, job relatedness, and disparate impact
as those earlier decisions had defined it.
Once again, employers evidently must satisfy a criterion for employment testing
that the Court, two years before, judged to be impossibly demanding.
The new law is fraught with ambiguity
and will doubtless send lawyers, their clients, and courts back to work
to figure out what it requires.
But the best guess is that the trendline had blipped, not reversed.

Miscellaneous Articles


The Toll of a Rights 'Victory'
By George F. Will
Washington Post Op-Ed, 2009-01-04

The Wreck of a Spoils System
By George F. Will
Washington Post Op-Ed, 2009-04-26

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