Exposing the Deceit About Disparate Impact

53 Pages Posted: 18 Jan 2024 Last revised: 7 May 2024

See all articles by Kimberly West-Faulcon

Kimberly West-Faulcon

Loyola Law School Los Angeles; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: July 18, 2023

Abstract

For decades, many right-wing politicians and a vocal cadre of legal scholars have argued that Congress should abolish the disparate impact provision of Title VII employment discrimination law. The central project of this Article is exposing an insidious deceit used to criticize Title VII disparate impact law—the erroneous claim, repeated throughout Disparate Impact Realism (DIR) by Professor Amy Wax, that there is near consensus in the field of industrial and organizational (I/O) personnel psychology that whites are significantly more valuable workers—are greater “human capital”—than “minority” workers because American whites, as a racial group, are cognitively superior to African Americans and Latinos. It identifies and examines critical failings in DIR’s portrayal of the evolution of I/O psychology since the Supreme Court’s 1971 decision in Griggs v. Duke Power. Furthermore, it defends Title VII disparate impact law’s presumption of racial group job ability equivalence as justified by I/O research findings and within Congress’ policy choosing authority.

Keywords: Griggs, hiring, Title VII, disparate impact, systemic racism, adverse impact, employment, discrimination, industrial organizational psychology, civil rights, fairness, racial inclusion harmony, job ability, validity, cognitive psychology, intelligence, testing, cognitive, g-based, white supremacy

JEL Classification: E24, J23, J24, J7, J70, J71, J78, J79, J82

Suggested Citation

West-Faulcon, Kimberly, Exposing the Deceit About Disparate Impact (July 18, 2023). Hofstra Labor and Employment Law Journal, Vol. 40, No. 2, 2023, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2023-06, Available at SSRN: https://ssrn.com/abstract=4676776

Kimberly West-Faulcon (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8172 (Phone)

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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