(9) "Lowering the Bar" - 09/20/99 Forbes Magazine, by Dan Seligman Adversity.Net, Inc. for Victims of Reverse Discrimination
Lowering the Bar (posted 09/14/99 - dead link)

[Excellent analysis of the legal battles over "disparate impact" and employment tests.  Author Dan Seligman examines currently pending court cases in light of historic precedents.]

          "AN EMPLOYER may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign and promote on the basis of test performance."

          "The words were memorialized in the U.S. Senate 35 years ago, when the solons were debating the Civil Rights Act of 1964 and some of them worried that the act might lower workplace standards.  Clifford Case of New Jersey and Joseph Clark of Pennsylvania, the Republican and Democrat floor managers of the bill, responded with an "interpretative memorandum" assuring the Senate that all such concerns were unfounded.  Men of unquestioned probity during their lifetimes, Cliff and Joe have looked like possible liars in recent weeks--ever since a disastrous, infuriating, largely unnoticed decision by the U.S. Court of Appeals in Philadelphia.

          "The problem for Case and Clark, not to mention thousands of employers, is the concept of "business necessity." This highly malleable term appears nowhere in the 1964 act [[although it has repeatedly been reinforced by the Supreme Court in making a distinction between the actions of private employers -- who, under the Constitution are largely unregulated in this regard, and Goverment employers who are subject to many racially preferential regulations imposed by the legislature. -- Tim Fay]], but ever since the act, it has bounced around endlessly in Congress and the courts, always joined to some formulation about the hiring standards permitted by civil rights law. Everybody agrees that business necessity requires minimum performance standards--the bank teller needs arithmetic skills, the character on the loading dock needs some muscle--even if the standards have a "disparate impact" on women or minorities. 

          "...In Griggs v. Duke Power (1971), its first big swing at business necessity under the Civil Rights Act, the Supreme Court ruled that a company's intelligence test was unrelated to the work done by ordinary laborers, and its disparate impact on blacks was therefore impermissible.

          "...In 1989, a much more conservative Supreme Court answered this question in the affirmative. In Ward's Cove Packing Co. v. Atonio, the Supremes restated the rule that tests must be substantially job-related but added, pointedly, that employers were free to require work performance that went beyond what was "essential."

          "...Reacting furiously to the Ward's Cove decision, Congress passed (and then-President George Bush signed) the Civil Rights Act of 1991. The act's main and stated purpose was to restore the operative definition of "business necessity" to what it had been before Ward's Cove--in other words, to go back to Griggs. But note that Griggs itself had always been ambiguous about employers' rights to impose high standards.

          "...[On June 29, 1999 an appeals court began considering Philadelphia's Lanning v. Septa.  The case involves] hiring standards for Philadelphia transit police. Catherine Lanning was one of the women who failed to meet the rigorous physical standards of the Southeastern Pennsylvania Transportation Authority. These required, among other things, that applicants for police work be able to run 1.5 miles in 12 minutes.  ...Over a span of several years, the running test was passed by 59.5% of the 1,080 men who took it but by only 12% of the 83 women. Pointing with horror to those figures, Bill Lann Lee of the U.S. Justice Department's Civil Rights Division (who filed a brief supporting the women) noted that the disparity worked out to 5.56 standard deviations--a fancy way of stating that the odds were astronomically high against its happening by chance.

          "Out there in the real world, most Americans would find those results unremarkable. ... But civil rights law converts the disparity into an instant presumption of bias, raising the question of whether the tests that produced them are "job-related for the position in question and consistent with business necessity" (the wording of the 1991 Civil Rights Act)."   (Forbes 09/20/99 edition by Dan Seligman)
[former link *http://www.forbes.com/forbes/99/0920/6407072a.htm ]

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