The Civil Rights Act of 1964 dismantled the Jim Crow laws of the South, but seven years later the Supreme Court made it clear that simply eliminating the "no Negroes need apply" wasn't enough when it came to employment discrimination. Writing for the majority, Chief Justice Burger said:
...good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability.That decision codified "disparate impact" as discriminatory, and therefore illegal.
Disparate impact refers to policies, practices, rules, or other systems that appear to be neutral, but result in a disproportionate impact on protected groups.
For years now I've been writing about the right wing assault on disparate impact being led by none other that Chief Justice John Roberts. If they can remove that standard, victims will be required to prove that the perpetrator intended to discriminate against them - which is almost impossible to do.
Because of my interest in this topic, I wasn't surprised that - in this era of right wing extremism - Heather Mac Donald, a fellow at the Manhattan Institute, wrote the quiet parts out loud in a piece titled, "Disparate Impact Thinking is Destroying Our Civilization."
The most consequential falsehood in American public policy today is the idea that any racial disparity in any institution is by definition the result of racial discrimination...
As a result of this falsehood, we are eviscerating meritocratic and behavioral standards in accordance with what is known as “disparate impact analysis.”
By now you've probably noticed that this is supposed to be the "intellectual" argument behind all of the right wing attacks on systemic racism and "diversity, equity, and inclusion" (DEI) initiatives.
Mac Donald goes on to describe how "disparate impact analysis" is dumbing down the fields of medicine, law, and criminal justice. But the problem she faces (just like all of the other arguments against DEI initiatives) is that when you deny systemic racism, you have to come up with another explanation for all of the racial disparities in medicine, law, education, employment, the criminal justice system, etc. So yes, Mac Donald goes there.
We need to face up to the truth: the reason for racial underrepresentation across a range of meritocratic fields is the academic skills gap. The reason for racial overrepresentation in the criminal justice system is the crime gap.
In other words, she claims that the disparities experienced by African Americans in this country are because they have an "academic skills gap" (ie, not as intelligent) and are more prone to commit crimes. That, my friends, is the very definition of racism.
People who know their history will recognize Mac Donald's argument as the same one that was used as the basis for scientific racism. For decades researchers tried to prove scientifically that Black people were biologically inferior to whites in order to justify their racism. That didn't end well.
Disparate impact analysis and DEI measures are an attempt to weed out systemic racism like this:
Numerous formulas or "algorithms" used in medical decisions — treatment guidelines, diagnostic tests, risk calculators — adjust the answers according to race or ethnicity in a way that puts people of color at disadvantage.
Given how embedded these equations are in medical software and electronic records, even doctors may not realize how widely they impact care decisions.
And there's this when it comes to African American boys and the criminal justice system:
Black boys as young as 10 may not be viewed in the same light of childhood innocence as their white peers, but are instead more likely to be mistaken as older, be perceived as guilty and face police violence if accused of a crime, according to new research. “Children in most societies are considered to be in a distinct group with characteristics such as innocence and the need for protection. Our research found that black boys can be seen as responsible for their actions at an age when white boys still benefit from the assumption that children are essentially innocent,” said the lead author.
I could go on with other examples of systemic racism, but I'll leave it there for now. My point is that those who are attacking DEI measures and want to do away with disparate impact as the standard for proving discrimination are forced to rely on racism to back up their claims. A clear-eyed view of reality tells a very different story.
At one time, it was very easy to identify racial discrimination in employment: Employers would put up signs saying “blacks need not apply.” After the civil rights laws were passed, it became a bit harder, because the stated policy of employers was not to discriminate on the basis of race. One test was to send off a bunch of fictional resumés and see which ones were selected for candidate interviews. At least as late as the early 1990’s, a resumé listing the candidate as black was less likely to be selected than an identical resumé saying the candidate was white.
ReplyDeleteThese days, I don’t think the resumé test would identify any racism, because I believe most companies try to arrange for resumés to be evaluated by people who don’t know the candidate’s race. (If the race is listed on the resumé, it is redacted.) But once a candidate is selected for an interview, the interviewer will see the race of the candidate, so it’s plausible that black candidates are discriminated against during the interview process even if they aren’t discriminated against when their resumés are evaluated. Unfortunately, this is hard to test for because we cannot send in pairs of candidates who are identical execpt for their race. That’s possible with resumés, which are fictional; you can’t do that in a situation where you need real people.
I don’t have a good solution to this, but neither does Heather MacDonald. She doesn’t identify any scenario in which she would admit the evidence of racism is clear enough that we should do something about it.
In 2005, New York State determined that 75 percent of people detained by Macy’s for shoplifting were non-white, and filed a lawsuit accusing Macy’s of “subjecting black and Hispanics to excessive scrutiny.”[1] Macy’s admitted that its employees had been engaging in racial profiling, and settled the case. The 75 percent statistic didn’t, by itself, show that Macy’s engaged in racial profiling, but it did indicate that an investigation was warranted. Rather than admit that looking at disparate treatment worked out well in this case, MacDonald claims that, “It was not permissible to argue that Macy’s arrests mirrored the shoplifting population,” which is just bizarre. If the case had gone to trial, the state would have had to prove what Macy’s admitted: that its employees engaged in racial profiling. It seems like MacDonald doesn’t want even admitted racial discrimination to be punished.
[1] complaint here: https://ur.ag.ny.gov/sites/default/files/court-filings/Macy%2527s_complaint.pdf