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Measuring Racial Discrimination (2004) / Chapter Skim
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3 Defining Discrimination
Pages 39-54

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From page 39...
... We provide examples of the large and persistent differential outcomes by race in various social and economic domains that make racial discrimination an important topic for social science analysis and motivate our examination of methods for measuring the role that race-based discrimination may play in those differences. For completeness, we examine the legal definitions of discrimination.
From page 40...
... The second component of our definition of racial discrimination includes some instances in which treatment based on inadequately justified factors1 other than race results in adverse racial consequences, such as a promotion practice that generates differential racial effects. A process with adverse racial consequences may or may not be considered discrimination under the law, depending on whether there is a sufficiently compelling reason for its use and whether there are alternative processes that would not produce racial disparities.2 In the areas in which this type of discrimination is unlawful, the reason is to curtail the use of unintentional practices that can harm racial minorities, as well as to sanction intentional discrimination that might not be identified because of the difficulty in establishing intent in the legal setting.3 The two components of our definition -- differential treatment and differential effect discrimination -- are related to, but broader than, the standards applied in a large body of case law -- disparate treatment and disparate impact discrimination (see the detailed discussion below in this chapter)
From page 41...
... that result in poor communication and consequently poorer performance by disadvantaged minority applicants as compared with other applicants. Compared with overt discrimination, it is often more difficult to find proof that subtle discrimination has occurred and to address it legally, even if in theory such subtle discrimination constitutes actionable disparate treatment discrimination.
From page 42...
... LIMITING THE DISCUSSION The experience of discrimination and its consequences may vary with several factors, including the domain in which it occurs (e.g., the labor market, the health care system, the criminal justice system, the housing market) ; the actors involved (e.g., employers, insurance companies, police officers, mortgage lenders, neighbors)
From page 43...
... Finally, our definition of discrimination is based on behaviors and practices, and as such it differs from a definition that also includes prejudiced attitudes and stereotypical beliefs. Discriminatory behaviors and practices may arise from prejudice and stereotyping, but prejudice need not result in differential treatment or differential effect.
From page 44...
... To motivate our report, we provide examples of differential outcomes among racial groups in five domains: education, the labor market, the criminal justice system, the housing market and mortgage lending, and health care.6 In these examples, we draw no conclusions about whether or to what extent differential outcomes by race are caused by discrimination. The magnitude of the differentials in these -- and other -- domains, however, is a primary reason to be concerned about our ability to identify and measure racial discrimination.
From page 45...
... Empirical research on labor market outcomes for Asians and American Indians is more limited, reflecting the lack of data on these groups (Altonji and Blank, 1999) .7 7Darity et al.
From page 46...
... One reason is lower thresholds for mandatory minimum sanctions for crimes that are more likely to be committed by blacks. This difference is particularly striking in a provision of the federal Anti-Drug Abuse Act of 1986: A mandatory minimum sentence of 5 years is imposed for possession of as little as 5 grams of crack cocaine; in contrast, a possessor of powder cocaine must have at least 500 grams to receive a mandatory minimum sentence of 5 years.
From page 47...
... . Although legal segregation and exclusion ended in 1968 with the Fair Housing Act, racial disparities in certain neighborhoods and housing markets continue.
From page 48...
... , allowing full political participation of nonwhite groups once excluded from voting; Federal Executive Order 11246, requiring compliance by government contractors with federal antidiscrimination policies and the development of administrative systems to monitor compliance; and the Fair Housing Act of 1968, banning discrimination in housing. Nonetheless, differential outcomes by race persist and motivate analysis to understand contributing factors, including the possible role of racial
From page 49...
... . We can then infer that these differential outcomes reflect deep differences in the historical and current experiences and environment of disadvantaged racial groups versus non-Hispanic whites.
From page 50...
... Each is discussed in turn below. Disparate Treatment Discrimination The core concept of disparate treatment discrimination emanates from the constitutional requirement of equal protection under the law and is codified in the main federal statute prohibiting racial discrimination in employment -- Title VII of the 1964 Civil Rights Act.
From page 51...
... For example, employers are generally not held liable under Title VII of the 1964 Civil Rights Act for disparities resulting from pre­labor market discrimination against blacks. Disparate Impact Discrimination Although disparate treatment was the original conception of unlawful discrimination, in 1971 the Supreme Court established a second, poten
From page 52...
... However, the definition of racial discrimination for purposes of evaluating constitutional violations is narrower than the two-part legislative standard that governs employment discrimination law. Specifically, although the equal protection clause prohibits disparate treatment discrimination that fails to have the most compelling societal justification, the Constitution prohibits only intentional discrimination; evidence of disparate impact alone will not establish a violation.
From page 53...
... 200 (1995) , the Supreme Court announced that all racial classifications by government -- whether federal, state, or local -- are subject to strict judicial scrutiny under the Constitution and can be sustained only if they are "narrowly tailored" to serve a "compelling government interest." The Court "held that, under the equal protection component of the Fifth Amendment's due process clause or under the equal protection clause of the Constitution's Fourteenth Amendment, all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny, that is, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests" (515 U.S.
From page 54...
... Our definition is not limited to those actions defined as discriminatory within a legal framework but also encompasses subtle behaviors and processes and cumulative discriminatory effects that may not be explicitly unlawful or easily measured. In the next chapter, we discuss in more detail the possible ways in which discrimination may manifest itself and return to a discussion of when these discriminatory behaviors may or may not be explicitly unlawful.


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