Fairness in Employment Testing Validity Generalization, Minority Issues, and the General Aptitude Test Battery (1989) / Chapter Skim
Currently Skimming:
2 Issues in Equity and Law
2 Issues in Equity and Law
Pages 29-51
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 29... ...
The civil rights movement of the past quarter century, although it has for the first time in the nation's history brought black Americans under the mantle of equal justice, has also caused fissures in the general consensus about the meaning of fairness and justice. From the beginning, notions of equality under the law, fair competition, and equal opportunity gave the movement its strong ethical appeal, providing a rationale for ending the legalized caste system that blacks in America had been subjected to since the abolition of slavery.
|
From page 30... ...
Programs designed to enhance the opportunities of minorities and women, for example, minority set-asides in federal contracting and the encouragement of affirmative action hiring programs, generated a good deal of ambivalence. Many who had supported equality and equal competition for society's goods found that the same principles made them strong opponents of policies of preferential treatment intended to bring some measure of equality of life chances.
|
From page 31... ...
Economic Liberalism The ideas of political liberalism were reinforced in the nineteenth century by the growing popularity of laissez-faire economics. The work of Adam Smith and the British school of political economy knit together the liberal idea of the state as a voluntary association of free and equal individuals and the idea of a free-market economy based on the fair competition of individuals.
|
From page 32... ...
Meritocracy The constellation of ideas described above-that society is made up of equal individuals; that these individuals deserve equal treatment under law; that careers should be open to all, not reserved to privileged groups; that equal competition for rewards in a free-market economy promotes the interests of individuals and of the society as a whole-found institutionalized expression in the mid-nineteenth century establishment of the professional civil service based on merit hiring. Historians have suggested that the merit system in the United States was a by-product of the egalitarian impulses of Jacksonian democracy.
|
From page 33... ...
The Contemporary Impasse on Preferential Treatment Policies of preferential treatment for members of social groups defined by race, ethnicity, or gender are at the heart of the question of withingroup scoring. Because they also represent the broad divide between the pertinent value systems, the discussion below focuses on the arguments that have been marshalled for and against preferential treatment in the past 25 years or so.
|
From page 34... ...
This belief led many to oppose the change of emphasis in government policy in the late 1960s, when the regulatory agencies charged with implementing the Civil Rights Act of 1964 started encouraging class action suits and otherwise judging compliance issues in terms of groups or classes of people.
|
From page 35... ...
312 [19741~. Among the arguments brought against preferential admissions policies were these: there is no way to identify the individual victims of discrimination or to prove that those benefiting from the policy of racial preference were in fact victims of past discrimination; there is evidence that the beneficiaries of preferential policies in professional school admissions come from privileged backgrounds; preferential treatment for blacks as a group creates injustice for identifiable white individuals; some whites who are innocent of any acts of past discrimination will pay the price; many members of white and other ethnic groups have also suffered discrimination and will want preferential treatment too.
|
From page 36... ...
And the remedy, therefore "has to correct and cure and compensate for the discrimination against the people and not just the discrimination against identifiable persons" (Marshall, 1984:10061. Marshall, who was Assistant Attorney General for Civil Rights during the Kennedy and Johnson administrations, contests the assertion that the equal protection clause is concerned only with the protection of individuals against discrimination, saying that it pertains to individuals only by reason of their membership in groups.
|
From page 37... ...
(1977) and others, that there is nothing novel in the fact of preferential treatment as it occurs in affirmative action programs.
|
From page 38... ...
FEDERAL POLICY AND PREFERENTIAL TREATMENT Given the deep ambivalence of our society, it is not surprising that the policies of the federal government in its several branches have often appeared as contradictory as the philosophical positions sketched above. We have mentioned the example of two former Assistant Attorneys General for Civil Rights, both of them well-respected legal thinkers, coming to very different conclusions about the constitutional permissibility of benign racial classifications.
|
From page 39... ...
As a consequence, a new agency was created by the act to foster compliance with Title VII; in addition, the Department of Justice was given broad authority to bring suit against employers when there was evidence of such systematic resistance. As we describe below, the position that the federal government has reached through a long process of administrative and judicial interpretation of the Civil Rights Act of 1964 is one of tending to promote de facto preferences for certain protected groups, the language of Title VII notwithstanding.
|
From page 40... ...
However, the traditional conception of individual rights and the individual's access to the courts for remedy does not comport well with widespread and deeply entrenched discrimination against a whole race. Congress also recognized that there was a strong possibility of massive, systematic resistance to the Civil Rights Act.
|
From page 41... ...
. In 1966 the new agency made what must be considered among its most influential policy decisions when it interpreted Title VII discrimination to consist not merely of employment practices intended to discriminate or to treat people of protected status differently from others, but also of any employment practices that had an "adverse impact" on members of protected groups (Robertson, 1976:1-21.
|
From page 42... ...
Through them, Congress elevated the Equal Employment Opportunity Commission, giving it broad new powers to bring suit and, at least by implication, endorsing the agency's aggressive posture on promoting a work force representative of the community. This more active stance is also evident in the amendments extending the Civil Rights Act to federal hiring; Congress incorporated the requirement that each federal department and agency must develop an affirmative action plan.
|
From page 43... ...
Adopted as one of three Civil War amendments passed by a Radical Republican Congress intent on protecting the newly emancipated blacks, the Fourteenth Amendment embodies the ideal of equal justice under law and provides that no state "shall deny to any person within its jurisdiction the equal protection of the laws." It has been the major vehicle for developing substantive meaning for the concept of equality.
|
From page 44... ...
Laurence Tribe suggests that the decision in Washington v. Davis "symbolizes the Supreme Court's trepidation about embracing the highly intrusive structural remedies that may be required to root out the entrenched results of racial subjugation" (1988:15101.
|
From page 45... ...
Instead, in the absence of proof of a racially motivated government actor, the actual circumstances of racial disadvantage unemployment, inadequate education, poverty, and political powerlessness- become unfortunate conditions, not the consequences of racial discrimination. Affirmative Action In previous sections we have developed the theme that the federal government has been reluctant to embrace straightforward policies according preferential treatment to the victims of systemic discrimination.
|
From page 46... ...
(Executive Order 11,246 and successor Executive Order 11,478 also regulated government employment practices until they were superseded by the 1972 amendments to the Civil Rights Act.) In the private sector, it was not until 1978 that the Supreme Court recognized the legality of voluntary affirmative action programs.
|
From page 47... ...
As an illustration of the Supreme Court's cautious approach in the emerging case law, Tribe notes that the Court has seemingly regarded all racially explicit set-asides and other measures that force visible burdens on individuals because of their nonminority status as "constitutionally problematic to some degree." No Justice, he points out, has endorsed minimal scrutiny of race-based preferences (Tribe, 1988: 1523~. Although developments in the law permitting voluntary affirmative action programs may ease the contradictory impulses in federal policy in some circumstances, the Court's limited and cautious recognition of affirmative action programs does not provide any general mandate to pursue racial balance.
|
From page 48... ...
PERSPECTIVES ON WITHIN-GROUP SCORING In the emerging case law, the Supreme Court has recognized the use of race- and gender-conscious employment practices in rather closely circumscribed situations for the purpose of remedying past or present unlawful discrimination or to foster appropriate affirmative action. Although the Supreme Court has not itself had occasion to address the subject of within-group scoring, a variety of score-adjustment mechanisms intended to reduce adverse impact have been upheld at the appellate level, particularly in the Second Circuit.
|
From page 49... ...
In rejecting the district court's finding that the affirmative action plan was illegal because it was not temporary, the Supreme Court reasoned that: the plan was flexible and did not impose quotas; it did not authorize blind hiring by the numbers, but expressly directed that numerous factors be taken into account; and the employeris plan was to "attain" a balanced work force, not to "maintain" a permanent racial and sexual balance.
|
From page 50... ...
1005 [198411. The race-conscious scoring procedures that the court approved included: separate frequency distributions for minority and nonminority candidates; establishing score zones in which a group of final examination scores are deemed the same for purposes of certification and appointment; and elimination of particular items that resulted in statistically significant adverse impact among candidates of substantially equivalent ability.
|
From page 51... ...
And, since in Justice Stevens's words, Title VII permits but does not require an employer to grant preferential treatment on the basis of race or gender, score adjustments for affirmative action purposes by a governmental employment agency might be found to constitute undue governmental interference with managerial discretion. If the scoring system is not justifiable as part of an affirmative action plan, then its acceptability would seem to depend on whether the weight of legal opinion will recognize the adoption of a generalized score adjustment, designed to prevent adverse impact, as an appropriate compliance effort under Title VII.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.