[gnicholas]

> because the CEO was intentionally using neutral rules of hiring that ended in "discriminatory" results.

Against what baseline? The results are only discriminatory against a baseline in which affirmative action is baked in. But this can't be the proper baseline, because if it is then any amount of affirmative action can be called into question.

Does your company practice some affirmative action? That has a disparate impact that hurts minorities, because you could be doing more affirmative action!

Edit: simplified my original reply

[ddiq]

You can read more about the baseline known as the 80% rule here https://en.wikipedia.org/wiki/Disparate_impact#The_80%_rule

Since the onus is on the employer to prove that they had a legitimate reason for this disparate impact, often these cases end in settlement.

[gnicholas]

Sure, if the employer separately has disparate impact problems, they could be in trouble based on those numbers. But merely saying that you do not practice affirmative action does not create additional legal problems.

I'm sure many of these cases end in settlement — 90% of all cases do. And yeah, it's not a great idea to go around saying stuff that will inflame people. But saying something that the Chief Justice of the Supreme Court has said ("The way to stop discrimination on the basis of race is to stop discriminating on the basis of race") would not be great ammunition for a plaintiff.

[marcinzm]

Based on studies (ie: resumes with different names, etc.) the baseline is for hiring decisions to be racially motivated against minorities.

[herostratus101]

Those studies are deeply flawed because they pressupose that the average black college graduate is as prepared as the average white college graduate, or that race does not predict performance controlling for educational attainment. When you look at the results of the National Adult Literacy Survey, it immediately becomes apparent that that is not the case.

[ddiq]

Those are flawed studies, as different names is as much a class distinction as a racial one. Even if it were true, however, a white candidate will on average be better than a black candidate with the same resume, because the white candidate had to pass higher standards to get into the same university.