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Culture War Roundup for the week of March 11, 2024

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IANAL but I've interviewed/hired a lot of people in a lot of firms in a very g-loaded industry and I don't think this is the right understanding of Griggs or employment law at all.

Disparate Impact doesn't mean that every test with a DI is downstream of invidious demonstration. What it does, AAIUI, is to shift the burden to the employer to demonstrate that the test has substantial relation to the actual duties of the job. That's why all my employers have very consistently made sure to relate everything in the interview process to specific aspects of the jobs, in a documented fashion. If you ask a candidate to solve a mathematical riddle, you make sure somewhere it's listed that "mathematical reasoning under uncertainty" is a job criterion. And if you're sued, you demonstrate where and how people with the job reason mathematically.

This is a bit of a middle ground. Certainly the burden-shifting nature of DI discourages a lot of otherwise cromulent practices merely out of a desire to reduce the risk of being sued and having to mount that kind of defense. But it's certainly quite far from the Kendi nonsense that every difference in outcome is itself discriminatory. It pleases neither contingent.

Disparate Impact doesn't mean that every test with a DI is downstream of invidious demonstration. What it does, AAIUI, is to shift the burden to the employer to demonstrate that the test has substantial relation to the actual duties of the job.

Which is sufficiently burdensome to basically ban such tests. Furthermore, if the plaintiff in such a case can suggest that there's a test which would accomplish the same goals without the disparate impact, he wins anyway -- and of course there's no way the employer can disprove the counterfactual suggested.

I have had to take a paper test for every job I’ve ever gotten, in a field that lots of blacks would like to get into but often don’t make it.

One or two? Whatever, things slip through the cracks. Industry standard? I doubt it.