Disparate Impact Realism

TABLE OF CONTENTS INTRODUCTION AND SUMMARY I. DISPARATE IMPACT EMPLOYMENT DISCRIMINATION: THE DOCTRINE AND ITS UNCERTAINTIES II. EVIDENCE ON DISPARATE IMPACT: INDUSTRIAL AND ORGANIZATIONAL PSYCHOLOGY (IOP) RESEARCH A. Job Screening Methods and Predictions of Job Performance B. Job Screening Methods and Adverse Impact: The Validity-Diversity Tradeoff III. SQUARING THE CIRCLE: COMPLYING WITH THE REQUIREMENTS OF DISPARATE IMPACT IV. REFORMING DISPARATE IMPACT: ALTER OR ABOLISH IT A. Alter It: Disparate Impact Realism B. Abolish It C. The Problem of False Negatives CONCLUSION INTRODUCTION AND SUMMARY In Ricci v. DeStefano, (1) the Supreme Court recently reaffirmed the doctrine, first articulated by the Court in Griggs v. Duke Power Co., (2) that employers can be held liable under Title VII of the Civil Rights Act of 1964 (Title VII) for neutral policies with a disparate impact on minority workers. (3) The Court has further held that employers can escape liability by showing that a policy is job-related or consistent with business necessity. (4) In the interim since Griggs, social scientists have generated a substantial body of research designed to help employers comply with the mandates of the doctrine. (5) This evidence has undermined two key elements of Griggs that have informed the application of the disparate impact rule more generally. First, Griggs and its progeny rest on the implicit assumption that fair and valid staffing practices will result in workers from each race being hired or promoted in rough proportion to their numbers in the background population or in an otherwise appropriately defined pool of candidates. (6) The so-called four-fifths rule, under which an employer is presumptively liable if the rate of hiring for minority workers is less than 80 percent of the rate for the majority white population, reflects this assumption. (7) Second, the Court in Griggs noted the absence of evidence that the screening criteria in that case--a high school diploma and scores on a "professionally prepared aptitude test[ ]"--were related to subsequent performance of the service jobs at issue, and expressed doubt about the existence of such a relationship. (8) Social science research casts doubt on both of these aspects of Griggs. First, research in industrial and organizational psychology (IOP) has repeatedly documented that, despite their imperfections, tests and criteria such as those at issue in Griggs (which are heavily "g"-loaded and thus dependent on cognitive ability) remain the best predictors of performance for jobs at all levels of complexity. (9) Second, work in psychometrics, educational demography, and labor economics indicates that blacks, and to a lesser extent Hispanics, currently lag behind whites both in cognitive ability test performance and in the skills needed for success on the job. (10) These gaps are reflected in lower scores on the types of g-loaded job screens that best predict job success. (11) The combination of well-documented racial differences in cognitive ability and the consistent link between ability and job performance generates a pattern that experts term the "validity-diversity tradeoff": the most effective job selection criteria consistently generate the smallest number of minority hires. (12) Indeed, the evidence indicates that most valid screening devices will have a significant adverse impact on blacks and will also violate the four-fifths rule under the law of disparate impact. (13) In sum, the IOP literature demonstrates that the empirical and demographic premises behind the disparate impact rule do not match reality and have turned out to be myths. (14) As a consequence, most legitimate job selection practices, including those that predict productivity better than alternatives, will routinely trigger liability under the current rule. (15) Although the Supreme Court in Griggs and subsequent cases has repeatedly stated that disparate impact doctrine is consistent with a rigorously competitive meritocracy, (16) employers seeking to maintain such a meritocracy among a diverse population will run a high risk of being sued for violations of the rule. …