June 29, 2011

"Disparate Impact Realism"

Here's the abstract of a new law review article:
Disparate Impact Realism 
Amy L. Wax
University of Pennsylvania Law School
William & Mary Law Review, Forthcoming  
Abstract:       
In Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the Supreme Court recently reaffirmed the doctrine, first articulated by the Court in Griggs v. Duke Power Company, 401 U.S. 424 (1971), that employers can be held liable under Title VII of the 1964 Civil Rights Act for neutral personnel practices with a disparate impact on minority workers. The Griggs Court further held that employers can escape liability by showing that their staffing practices are job related or consistent with business necessity. 

In the interim since Griggs, social scientists have generated evidence undermining two key assumptions behind that decision and its progeny. First, the Court in Griggs noted the absence of evidence that the selection criteria in that case (a high school diploma and an aptitude test) were related to subsequent performance of the service jobs at issue, and expressed doubt about the existence of such a link. But research in industrial and organization psychology (IOP) has repeatedly documented that 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. Second, Griggs and its progeny rest on the implicit assumption, reflected in the so-called 4/5 rule, that fair and valid hiring criteria will result in a workplace that roughly reflects the representation of each group in the background population. Work in psychometrics and labor economics shows that this assumption is unjustified. Because blacks lag significantly behind whites on measures of cognitive ability, most valid job selection criteria will have a substantial adverse impact on this group. 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”: job selection devices that best predict future job performance generate the smallest number of minority hires in a broad range of positions. Indeed, the evidence indicates that most valid screening devices will have a significant adverse impact on blacks and will also violate the 4/5 rule under the law of disparate impact.  
Because legitimately meritocratic (that is, job-related) job selection practices will routinely trigger prima facie violations of the disparate impact rule, employers who adopt such practices run the risk of being required to justify them – a costly and difficult task that encourages undesirable, self-protective behaviors and may result in unwarranted liability. To alleviate this burden, the article proposes to adopt a new regime of “disparate impact realism” that abandons the 4/5 rule in favor of sliding scale ratios pegged to measured disparities in group performance and the selectivity of particular positions. Alternatively, the disparate impact rule should be repealed altogether. The data indicate that pronounced differences in the background distribution of skill and human capital, not arbitrary hurdles imposed by employers, are the principle factor behind racial imbalances in most jobs. Moreover, blacks lag behind whites in actual on-the-job performance, which indicates that employers are not unfairly excluding minorities from the workforce but rather bending over backwards to include them. Disparate impact litigation, which does nothing to correct existing disparities and distracts from the task of addressing them, represents a cumbersome, misplaced effort that could better be directed at the root causes of workforce racial imbalance.

52 comments:

Anonymous said...

http://tinyurl.com/4xefc4g

FAIRFAX, Va. --Resort-style swimming pools with fountains and heated spas, billiards rooms, granite counter tops, ceramic tile, indoor basketball courts, stainless steel appliances --many Fairfax County taxpayers cannot afford such luxuries. But they are paying for these amenities for use by low-income residents who live in subsidized housing in affluent neighborhoods.

Anonymous said...

The Left:

1. Everyone needs to go to college to attain special skills.

2. People shouldn't be hired based on special skills.

Anonymous said...

Very gutsy of Ms. Wax to write stuff like that under her real name. Same for Steve, of course.

Harry Baldwin said...

The question for Amy L. Wax is, tied hand and foot, will she float if she's thrown into a pond? Because that's the level of medieval reasoning by which she can expect her argument to be judged.

Ulysses Jones said...

Certainly true, but the writer will probably regret publishing it when jobs are hard to get later from fear of hiring a "racist", and daily harassment comes her way.

Anonymous said...

I predict- Everyone will acknowledge it and adopt a kind of "well of course, everyone already knows this" and then probably just move on, or possibly argue that it should remain anyway to punish the "just plain racists".

But, imagine if GOP play this up and run on ending affirmative action. Imagine that to drive people to the polls. And in general, stir the pot. Probably draw a lot of over reaction.

Let the left cry "racist" al they want, more and more people are watching these flash mobs and more importantly watching the reaction of the media and political elites, so they know the score.

Anyone doubt there will be some, youth misbehavior this 4th? I am a little concerned about DC tbh, after the brawl up at howard just this weekend. But there is a pretty overwhelming police presence at the mall usually.

M Stein said...

Hopefully the Supreme Court justices will read it.

M Stein said...

Also, see the discussion and full paper hosted by Chuck.

SFG said...

How'd she get away with this?

Anonymous said...

Holy shit. Well, Ms. Wax, it was nice knowing you. Unless your surname saves you in the right circles, which it just might.

Eteocles said...

Wow. How long before she gets Watsoned right out of academia?

uh oh said...

Hope she has tenure.

Anonymous said...

Wow. How long before she gets Watsoned right out of academia?

Longer than for a male in the same situation, but it will still happen.

aph said...

Something interesting...Prof Wax was a law clerk to Abner Mikva in 1987-1988...

A couple years later Mikva offered Barack Obama, just out of Harvard Law, a law clerk position for him but Obama turned it down to become a community organizer...

Caleo said...

It was brilliantly written and the excerpt should be widely circulated as a concise rebuttal to Standard Leftist Nonsense.

PV van der Byl said...

Evidently, Professor Wax is a very brave lady--- her tenure notwithstanding. She is in fact a chaired professor at Penn Law. She also has had an interesting life apart from her legal career. She graduated from Harvard Medical School before deciding to become a lawyer.

Anonymous said...

Finally a law review article worth its author's salary.

Fortunately, she has tenure and an endowed professorship. And perhaps not coincidentally, she was a neurologist in the Bronx before pursuing a second career in the legal academy.

http://www.law.upenn.edu/cf/faculty/awax/

Nanonymous said...

Number of Pages in PDF File: 89

Alright, so Amy Wax is one of the few academic dissidents. All the power to her. But come on, 89 pages to basically say that disparate impact rules make no sense? Seems a little excessive.

Anonymous said...

" http://tinyurl.com/4xefc4g "

The pictures are quite startling... Most people in the top decile of the household income in the country don't have any of this and could only afford this sort of things at the expense of savings and kids' education. But not to worry - these luxuries won't last very long. Ghetto residents will turn it into ghetto environment in no time.

Nanonymous said...

How'd she get away with this?

Tenure. A rare 1 in 1000 example of how the idea of tenure actually makes sense and produces results.

Kiwiguy said...

It's mentioned on this HBD bibliography list.

human biological diversity.com

Anonymous said...

I applaud you, Ms. Wax.

Whiskey said...

Disparate Impact is used to drive White guys out of various employment. That's the whole purpose. And the chief enforcers are ... Women. Women are in direct competition with White Guys, who are even worse, their equals in social standing and the like. Which invites only contempt from women.

Thus the whole arcane Disparate Impact argument is really just window dressing for what society (dominated by female votes and market-making consumer purchasing power) wants to do anyway. Purge as many ordinary White guys out of life.

Chris Anderson said...

Amy Wax invited John Derbyshire to lecture at Penn.

http://www.johnderbyshire.com/Opinions/HumanSciences/upennlaw.html

So maybe not so surprising.

Also, if you google her, "Amy Wax Racist" is the #2 result.

So she is already being thrown into the pond.

Big Bill said...

Not to worry. Ms. Wax is female and Jewish. She is a double minority. She will do fine.

As a matter of fact, I would look for more such articles by Jewish scholars, for whom Disparate Impact law is a major problem.

When you realize that Jews are massively "overrepresented" (a disparate impact buzzword)is many, many elite occupations, you can use the logic of Disparate Impact as a way to get rid of them.

Can you imagine the carnage to the Jewish people if they only got 2.5% of college professorships, or MD degrees, or JD degrees, or neurosurgical residencies, or ... . Well, you get the picture.

Again, expect more Jews like Prof. Wax to bash Disparate Impact in the future.

Her is a nice video dialog between Glen Loury and Amy Wax that touches on racial and cultural differences:

http://bloggingheads.tv/diavlogs/31656

Anonymous said...

"But come on, 89 pages to basically say that disparate impact rules make no sense? Seems a little excessive."

Citations are a bitch in law review articles. 80% of the text is citations.

Anonymous said...

Hm, Penn Law? Admitting that racial differences exist?

Where have I seen this before...

http://www.johnderbyshire.com/Opinions/HumanSciences/upennlaw.html

Ah, yes. Same woman!

another Aaron said...

Most of these commenters don't seem to have heard of Amy Wax. Her arguments are not dismissed out of hand, she is not ostracized as a racist; in fact, her race-realist arguments are taken seriously. You can see a bloggingheads debate where she argues, from a liberal standpoint, that whites are not obligated to correct white-black inequality, even if it's the fault of white racism, because it's impossible for whites to do that. Her book on that topic got quite a bit of attention in the mainstream media. And no, she doesn't get a free pass because she's Jewish.

If the race-realist right were less polemical, less bound up in their apocalyptic Good vs. Evil mythology, then liberals like Amy Wax would be welcomed, publicized, and supported more, as Steve Sailer is doing here. Wax's book was reviewed approvingly in some mainstream political sites. Where were the book reviews on the race-realist right? (To be fair, I did come across that bloggingheads link at a white nationalist site, which linked to it approvingly, though some of the commenters had a problem with Wax's ethnicity.)

Another lesson: from what I've seen, Wax does not talk about genetic influence on racial differences. Maybe she doesn't even believe there is a genetic influence, I don't know. But she shows how far you can take race-realist arguments without even getting into that topic.

Wax proves that if you're able to talk to people respectfully and intelligently, without ranting, then yes, you too can be taken seriously in discussions on race.

dearieme said...

" Maybe she doesn't even believe there is a genetic influence,..": she passed out of medical school so she will know far more biology tha your average lawyer, or social scientist, or "liberal".

Anonymous said...

Aaron,

Do you honestly believe the reaction would have been the same if it had been written by an old white man? (everything else held equal)

Sword said...

When looking at her UPenn page, I saw that she has written texts with titles that could inflame the liberals since at least 2003. Yet, she is not fired by now. My hunch is that she will not be fired for this thing.

Anonymous said...

"Wax proves that if you're able to talk to people respectfully and intelligently, without ranting, then yes, you too can be taken seriously in discussions on race."

Amy Wax:
IQ ~145-150
Relatively wealthy
Secure job
Member of the elite

Average HBD person:
IQ ~105
Not wealthy
No secure job
Not a member of the elite

When one finds oneself to be in Ms. Wax's position, I suppose talking calmly about these issues is far easier than for the average HBD follower. It is too high a burden to ask normal people to speak in monotone regarding a great lie they have encountered.

just another goy said...

Big Bill's comment is as classic an antisemitic way of thinking as could be mustered. To Bill and his ilk anything Jews ever do or say is for their own advancement to the detriment of others. Jews too good at capitalism and get pounded for it? They'll go rabid for communism. And of course THAT hasn't quite satisfied the Big Bills of the world.

That Jews are selfish parasites is an article of faith to the antisemite that can never be falsified. Whatever a prominent Jew (or group of Jews) do or say can be read as having been done for tribal reasons. From marrying each other to marrying out, it's all devlish to the antisemitic mind.

The term "antisemite" has been whored out by multimillionaire foxman and hollywood types in ways that should rightly enrage anyone against whom it's been used (or whose logic was offended by it) but it is real and does exist and Bill, whether he meant to or not, epitomized it's way of thinking as well as anyone could:

"Jews suck for being liberals but let's prepare the crowd for why they'll still suck should they cease to be liberals."

Thanks.

Anonymous said...

"And no, she doesn't get a free pass because she's Jewish."

It certainly doesn't hurt her. Being female, Jewish, and tenured gives a lot more protection than being male, gentile, and tenured does - and the list of male gentile tenured "race realists" who were rational and calm, but who were nevertheless subjected to extremely long and calculated and vicious hate and vilification campaigns, is a long list, but you wouldn't know anything about that, would you? Or you pretend not to know anyway.

"If the race-realist right were less polemical, less bound up in their apocalyptic Good vs. Evil mythology, then liberals like Amy Wax would be welcomed, publicized, and supported more, as Steve Sailer is doing here. Wax's book was reviewed approvingly in some mainstream political sites. Where were the book reviews on the race-realist right? (To be fair, I did come across that bloggingheads link at a white nationalist site, which linked to it approvingly, though some of the commenters had a problem with Wax's ethnicity.)"

There are plenty of people on the "race realist right" who do everything you say they should do (as you yourself were forced to admit) yet the way you talk, everyone on the "race realist right" is no different from the worst ranters on the vnnforum. You simply don't know the subject matter you claim to be addressing (the race realist right) or you're dissembling.

"Another lesson: from what I've seen, Wax does not talk about genetic influence on racial differences. Maybe she doesn't even believe there is a genetic influence, I don't know. But she shows how far you can take race-realist arguments without even getting into that topic."

What planet did you just drop down from? People have been making logical, non-hysterical, rational race-realist arguments for over a century, and have been routinely shut out of the public debate and ruthlessly vilified/shunned/chased out of academia and/or popular society. Being "nice" and rational doesn't buy one any sort of respect or reciprocity if one is going against TPTB.

The fact that a Jewish liberal is making arguments that mesh very neatly with Jewish interests shouldn't escape notice from anyone. Disparate Impact, if applied to Jews, would be devastating to Jewish power. Therefore backup plans are being put into place should the time come when it might be seen as convenient to make this theory "go away"; hence the careful legal argument.

In reality nothing will change; Jews won't be forced to reduce their numbers in elite institutions due to quotas; white males won't stop being eliminated from the workforce and elite institutions due to Disparate Impact, but, this little paper will be ready as a backup in case something goes wrong. This paper isn't some turning point in the war against whites; it isn't a sign that "Jews are finally coming to their senses"; it isn't anything more than the usual Jewish dual strategy of always leading both sides of an argument so that they win no matter which side "wins".

"Wax proves that if you're able to talk to people respectfully and intelligently, without ranting, then yes, you too can be taken seriously in discussions on race."

Either you are too naive to be allowed out without a leash, or you are being deliberately disingenuous. Jared Taylor isn't respectful and intelligent? Kevin MacDonald? Arthur Jensen? J. Philippe Rushton? James Watson? I could go on and on with a much longer list of people you probably have not heard of, and you want to sit here and claim that they are "ranting", that they aren't respectful and intelligent? Please. There's a war out there, and TPTB do not give any credit or any respect to anyone they despise no matter how respectful and rational they are.

Anonymous said...

"Can you imagine the carnage to the Jewish people if they only got 2.5% of college professorships, or MD degrees, or JD degrees, or neurosurgical residencies, or ... . Well, you get the picture."


Can you imagine the carnage to all of us? Personally, I like Jewish docs. They do a good job.

Anonymous said...

"Most of these commenters don't seem to have heard of Amy Wax...."

Anon 9:09pm:

Points well taken, but was the book in fact reviewed widely in the mainstream press?

I searched and the only one I found was a brief approving review by John McWhorter in the New Republic:

http://www.tnr.com/book/review/what-hope

She was quoted in this article about the 72 percent black illegitimacy rate:

http://www.blacknews.com/news/black_unwed_mothers101.shtml

Anonymous said...

I am a little leary.

If the left embraces Amy Wax's "Realism" then what? They will still want to appear to have the moral high ground. They will still expect productive folks to pay for it. And they will still institute programs that line their own pockets at our expense which vilify productive people and coddle and excuse parasites and criminals.

The left still needs to be defeated because they are parasites who feel entitled to free load and profit off us.

Anonymous said...

All disparate impact is doing today is encouraging shipping jobs to countries where it doesn't exist.

Anonymous said...

"that fair and valid hiring criteria will result in a workplace that roughly reflects the representation of each group in the background population."

Points at the hiring practises of Hollywood, television, the NYT and in fact the entire MSM.

.
SFG
"How'd she get away with this?"

This has been on the cards for a while but still, slightly less insanity in the world is a good thing.

Anonymous said...

by the way, she was valedictorian at columbia law, after
the rigors of Harvard Medical School. Pretty damn impressive, I would say. Anyone who seeks to diminish
her at Penn Law out of hand as a misguided racist would have that to deal with. A lesson for Stephanie Grace -- wait until tenure to speak the truth.

Anonymous said...

I shall watch Ms. Wax' future career with much interest.

-osvaldo M.

ben tillman said...

Big Bill's comment is as classic an antisemitic way of thinking as could be mustered. To Bill and his ilk anything Jews ever do or say is for their own advancement to the detriment of others.

How could it be otherwise? Who else's ineterests could they possibly be advancing?

ben tillman said...

Points at the hiring practises of Hollywood, television, the NYT and in fact the entire MSM.

Not to mention law schools, law firms, and the courts.

Kylie said...

"I shall watch Ms. Wax' future career with much interest."

Sadist.

Jeff said...

To those of you who suggest that Ms. Wax is attempting to further a "Jewish Agenda," I say put up, or shut up. Where is your proof? How do you know that Ms. Wax speaks for all Jews or some "Jewish Agenda?" Do all white socialists like Dick Durbin, speak for all gentile whites? Hardly. The same is true for Jews, but even more so since they are so freaking smart that they populate the peaks of both the liberal and conservative positions. You guys are misguided; you are ascribing every individual of Jewish descent as part of a master machine when you know that cannot be possible.

The comments to this post demonstrate how out of control the anti-Jew talk has become. It is insane. You get someone of the highest credentials imaginable to support your general HBD position, then you act like Cartman and shout, "Stupid Jew."

Anon999 said...

Well said Jeff..

BTW, I loved the bloggingheads thing (I just d/l the audio and listened at work - wish it was a 10 hour debate instead of 1 hour..)

Anonymous said...

http://www.bloomberg.com/news/2011-06-30/fannie-mae-silence-on-taylor-bean-mortgages-opened-way-to-3-billion-fraud.html

Svigor said...

How dare Big Bill suggest Jews are self-interested? ANTI-SEMITE!!!

Anonymous said...

Good on you, Professor Wax.

Anonymous said...

"blacks lag behind whites in actual on-the-job performance, which indicates that employers are not unfairly excluding minorities but rather bending over backwards to include them"

If employers are bending over backwards to include blacks, can we conclude that employers are excluding whites?

Anonymous said...

In 2010 Prof Wax invited John Derbyshire to U Penn Black Law Students Assoc.

http://www.nationalreview.com/corner/197624/u-penn-panel-report/john-derbyshire

Anonymous said...

Amy Wax has a book on the subject. Derbyshire says it's excellent. Used ones as low as $12.57 on Amazon. Remember to go to VDare.com and click on Amazon's link, so VDare can get a commission.

Race, Wrongs, and Remedies: Group Justice in the 21st Century (Hoover Studies in Politics, Economics, and Society)