Roger Clegg on Disparate Impact in SOTU
Last month, the Department of Justice sued New Jersey and its Civil Service Commission for using an exam that “discriminates” against blacks and Hispanics, because these groups scored “statistically significantly lower” than whites.
Assistant Attorney General Thomas Perez (pictured) said, “This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated. The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”
Speaking at the left-leaning American Constitution Society, Perez said his department has “dusted off the disparate impact theory. If the fact support the use of disparate impact theory, whether it’s in the housing context, the voting context, the employment context, we will use the disparate impact theory because every court that has ruled on this has said that it is permissible to do so.”
The Center for Equal Opportunity’s Roger Clegg writing at NRO’s The Corner points out that during Obama’s recent State of the Union speech, he said his administration “will once again” file suits against civil rights violation and workplace discrimination, implying that the Bush administration didn’t file such suits. If that’s the case, Obama missed a big one. In 2007, Bush’s DOJ sued the New York City Fire Department for discrimination.
Furthermore, “‘the employment discrimination’ that the Obama administration is challenging is not really discrimination at all,” Clegg writes, “it’s the use of written and physical tests that are nondiscriminatory by their terms, in their design, and in their application, but which have a politically incorrect ‘disparate impact’ on this or that racial, ethnic, or gender group.”
Disparate impact creates are a no-win situation, figuratively speaking. Racial disparities in employment tests typically result in discrimination charges, and the employer ends up watering down the test. But the disparity remains. Just short of eliminating tests altogether, which fire and police departments seem reluctant to do, the employer will face discrimination complaints. If the employer tosses test results or adjusts them based on race, he’s in violation of the law.
The solution carries such a high and convoluted burden of proof. The employer must make sure the test is job related, a business necessity, and there are no less discriminatory alternatives for selecting employers.
