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No aspect of the CRA would actually need to be repealed to achieve most of what Hanania wants, which is the elimination of disparate impact doctrine. That is not enshrined in the text but was instead created through bureaucratic EEOC decisions, executive orders, and legal decisions. One president who takes interest in the issue, along with a favorable decision from the Supreme Court, could eliminate the legal basis of the ideology.
If you think that isn’t enough, I’d probably agree. I am in favor of giving people the freedom to discriminate however they want. The only durable discrimination is that enforced by law. Unjust discrimination really is too unprofitable in a free market. If Mormons want to live in a neighborhood that bars residence of non-Mormons, they should be allowed to. They will pay for it through reduced home prices, but I have no desire to infringe upon their ability to make that choice.
Further, without repeal or amendment, businesses are still liable to bogus workplace discrimination claims that receive outlandish payouts.
So DEI would not disappear, it just wouldn’t be compelled by law. That would still be a meaningful step forward from the current state of affairs, with no legislation required.
This is false. While the Civil Rights Act didn't originally include disparate impact (the Supreme Court developed it in Griggs), it was eventually codified in the Civil Rights Act of 1991. See 42 U.S. Code § 2000e–2.
The Ricci v. DeStefano opinion briefly reviewed this.
I knew about the history of judicial decisions, but was unaware of that legislation. Thanks for correcting me! I think represents a meaningful challenge to the vision presented by Hanania in the Federalist Society speech to which I linked. He operates under the impression that only Griggs need be overturned. In my estimation, after reviewing what you’ve provided, is that the ruling of Griggs is now enshrined into law and no longer reliant on precedent.
What then is the path forward? My initial reaction would be a wide-reaching ruling that recognizes that intelligence is the single best predictor of job performance, and so any semblance of g-loading makes a test or requirement meets the standard “that the challenged practice is job related for the position in question and consistent with business necessity.” Standardized tests, IQ tests, leetcode, etc. would be de facto protection for all hiring on merit, with disparate impact damned.
Does that seem like a viable path forward in your estimation?
I've been reading up on the same, spurred by Palladium's recent piece on a related topic.
The 1991 CRA lists the goal "to codify the concepts of business necessity", but it doesn't actually do anything to define that term. The most common legal theory I can find is "No Alternatives", which states that you can use an aptitude test as long as there's no alternative that would have less disparate impact. The actual implementation seems to be a hedge magic of best-practices, derived through the flailing of HR departments reacting to lawsuits. Critically, the burden of proof is on the business -- if you're causing a "disparate impact", you're guilty by default unless you can prove the necessity.
So, there could be room for the courts to clearly spell out a way of proving business necessity. If I were a lawyer I'd go digging for court cases where such a proof has been successful.
No alternatives means nothing and is entirely up to discretion. If an alternative results in 50% more diversity hire but 1% less efficiency, is it viable? What about 10% more diversity for 80% less efficiency? I doubt there are many alternatives found that result in increased efficiency, and if there are, the firm that doesn’t implement them will be punished by the market.
Thanks for sharing the Palladium article. It’s a death spiral that I remain more pessimistic about than Hanania, and my ideations have shifted from how best to change it towards how best to avoid the catastrophic consequences.
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In general I agree with your take, at least, as it applies to the USA. But, what about India and its caste system. Discrimination by caste has been extreme there for over a thousand years, at least. The endogamy rates are inhumanly high, even the USA with its miscegenation laws and endemic racism couldn't match the extremeness of Indian caste endogamy. The results are not exactly desirable.
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