[paisawalla]

This is an application of the disparate impact doctrine. Even facially neutral policies are considered suspect if they produce results that correlate against protected groups, irrespective of intent.

This doctrine is the basis for much of employment law. It is a significant reason why employers don't administer IQ tests (or equivalents) to screen candidates since ~the 90s.

A common objection to the doctrine is that it leads to unfalsifiable discrimination claims, which is why it seems nonsensical to you.

[59percentmore]

And a common rebuttal to the objection is that systemic racism is often difficult to untangle in a way that produces a neat chain of cause and effect (not least of which because discrimination can happen unconsciously or secretly); because the impact exists whether intent can be shown or not, the desire remains to ameliorate that impact.

If the issue happens upstream of the defendant to a claim - generally an organization being sued by an individual with fewer resources - it incentivizes such entities to push for changes upstream, so that they don't get stuck with the bill.

[AnthonyMouse]

> And a common rebuttal to the objection is that systemic racism is often difficult to untangle in a way that produces a neat chain of cause and effect (not least of which because discrimination can happen unconsciously or secretly)

We have a "disparate impact" and nobody can prove what proportion of it is due to things like parental income or childhood education as opposed to racism on the part of the employer. Because the former considerations are real contributors, the metric can regularly be expected to exceed the threshold even if the contribution of racism by the employer was zero. Doesn't that imply that we're essentially accusing people of racism at random?

> because the impact exists whether intent can be shown or not, the desire remains to ameliorate that impact.

The median household income for Asian Americans of Indian ethnicity is more than double those of Burmese ethnicity:

https://en.wikipedia.org/wiki/List_of_ethnic_groups_in_the_U...

This is objectively a disparate impact and likely shows up in several other metrics in addition to income. Disparate results can almost universally be obtained by arbitrarily segmenting the population into different groups and comparing the midpoints. Americans of Australian ancestry have a higher median income than those of Irish ancestry, Bolivians higher than Cubans. The result is often because the lower down group has a history of being oppressed.

What reasoned means can we use to determine which groups get the benefit of these methods to ameliorate the disparity and which don't? What should be done about the inherent impossibility of doing them simultaneously, e.g. because hiring a South African woman over a Haitian man would reduce the disparity on one axis while increasing it on another? Notice that considering each group separately could result in unconditional liability because either available alternative puts you over the threshold for one group or the other.

> If the issue happens upstream of the defendant to a claim - generally an organization being sued by an individual with fewer resources - it incentivizes such entities to push for changes upstream, so that they don't get stuck with the bill.

Do we want to apply this logic to other things? The median income in California and New York are significantly higher than they are in Alabama or West Virginia and they have higher ranked public schools. We can correspondingly expect that when applicants from different states apply for the same job, the ones from California and New York (even if they're the same race etc.) are more likely to be selected because they had more advantages growing up, even though none of them chose where they were born.

By the same reasoning we should then have the federal government penalize employers for hiring the applicants from the more affluent states so that it "incentivizes such entities to push for changes upstream, so that they don't get stuck with the bill." Does it make sense to do that?

[aakresearch]

That would end exactly at "Harrison Bergeron" world as described by Kurt Vonnegut, would it not? If every perceived advantage would require you to wear a "handicap".

[AnthonyMouse]

What do you mean? That's 20th century technology. It's making individualized evaluations. The elites wouldn't put up with that. They'd either have to take handicaps themselves or risk people noticing that they don't.

That's the beauty of aggregate statistics. You have some elite job with 100 slots. Before you had 60 of the slots going to cronies and the remainder being allocated on merit. The cronies were disproportionately of the same ethnicity so your statistics are skewed, but don't worry, all the cronies still get their slots. Because statistics can be balanced by getting even more cronies, this time of a different ethnicity, and giving them as many of what used to be the merit slots as you need to manipulate the average. Using statistics is perfect for pretending that you're giving people something when you're actually taking something away.

[paisawalla]

What evidence would disprove the claim that systemic racism is the cause of a persistent disparity?

[pc86]

Why is this the one time someone is expected to disprove a claim rather than the claimant being expected to provide evidence?

If you're making the claim you need to provide the evidence.

Most people would say that a persistent disparity means it's possible there is discrimination, but it's not definitive proof.

[tbrownaw]

I read that question as a suggestion that the claim is unfalsifiable (ie, bullshit, unscientific, etc).

[gacgacgac]

Importantly, the rule is not used to resolve racial discrimination claims. It's purely meant as the first test to evaluate whether a deeper dive is warranted. Fast, first pass data analysis tools are very useful for spotting unintended consequences.

[Manuel_D]

To the contrary, companies have been found liable for discrimination solely based on having the wrong percentages outcomes in its objective hiring assessments: https://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co.

[paisawalla]

You are selectively adhering to the letter of the law, when the practical effects are already well known and studied. One is not obligated to ignore literature, nor abstain from doing a simple extrapolation from the incentives placed on the table.

There is a large body of literature concerning the question "does disparate-impact enforcement cause employers to alter hiring behavior in ways unrelated to actual productivity or discrimination?" and the answer is largely "yes". As you suggested elsewhere in this discussion, Google may be useful.

[SiempreViernes]

That's not particularly surprising nor objectionable, of course legislation that reminds employers they shouldn't discriminate based on race changes practice even for companies that aren't actually caught doing it.

To act like it's bad that people of colour have a more fair chance of getting employed because of some piece of legislation is simply insidious. It's just been over a month since black people lost the right to a fair vote.

[rayiner]

> It's just been over a month since black people lost the right to a fair vote.

Literally the opposite happened. The Supreme Court ruled that there was VRA §2 liability when there was evidence of racially-motivated gerrymandering: "In short, §2 imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race." (Louisiana v. Callais, p. 26)

[paisawalla]

I don't start from the conclusion that disparities are evidence of racism.

[runako]

> selectively adhering to the letter of the law

Are you suggesting that companies should violate the law here? What do you recommend?

Edit: charitably, "adhering to the letter of the law" is sometimes shortened to "law-abiding" and is generally what we want.

[paisawalla]

You've misunderstood the point.

Prior to the beginning of your excerpt is the word "You", meaning the comment's author is the subject, not "companies". I'm saying the commenter is appealing to black letter law for the answer to the question "what happens when..." but we have observational evidence to answer the question.

[runako]

> we have observational evidence to answer the question.

Isn't the point that the observational evidence amounts to the companies in question steer clear of illegal behavior?

There are anti-money laundering laws, so banks institute procedures to help them comply. Yes, we expect companies to change their processes so they don't break the law. That's the point of the law.

I am confused with what you think companies should do in this situation. Expose themselves to legal and civil liability? Or change their behaviors so that close scrutiny indicates they are trying to comply with the laws and any bad actors acted against internal procedure?

[paisawalla]

The thread you're weighing in on is about whether the four-fifths rule is merely diagnostic, or functionally punitive.

You're arguing about something else, using the form "given we know that racism is happening, and furthermore we know where and how it is happening, why shouldn't we just do these Totally Cost Free and Obviously Good Things that are just like fighting money laundering"

Well, I just don't think any of these things are as evident as you seem to assume they are. Also fwiw I grew up in the US, where I was called all sorts of slurs -- like, the real ones you probably censor in your internal monologue when you see them written -- throughout K-12 education. I still don't believe in the existence of pervasive and oppressive racism the way you seem to assume it.