Disparate impact, also called adverse impact, is a judicial theory in U.S. law that addresses practices that are facially neutral but have a disproportionately negative effect on members of legally protected groups, such as those defined by race, color, religion, sex, national origin, or disability status under federal civil rights laws.
The theory of disparate impact arose from the Supreme Court’s landmark decision in Griggs v. Duke Power Co. (1971). In Griggs the Supreme Court held that Title VII “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.” To determine whether an employment practice that causes a disparate impact is proscribed, “the touchstone is business necessity. If an employment practice which operates to exclude [members of a protected group] cannot be shown to be related to job performance, the practice is prohibited.”
The idea of disparate impact has led to all sorts of lawsuits claiming discrimination where, in fact, the alleged discrimination was actually a function of the nature of the pool of applicants for a particular job category.
Dr. Tom Woods touched on this recently in one of his posts.
Earlier this month Harmeet Dhillon, Assistant Attorney General for Civil Rights, posted this: “At Yale Medical School, a black applicant is 29 times more likely to be invited to interview than an Asian with equally strong academics.”
A black critic on Twitter responded:
Yale School of Medicine has a total of 553 students across all four classes.
Total Black students: 44. That’s ~10 per class. [He means 11 — TW.] Total Asian students: 157. That’s ~40 per class.
There are nearly as many Asian students PER CLASS as there are Black students in the entire school.
Black: 14% of America. Only 7% of Yale Med Asian: 7% of America. 28% of Yale Med. Who exactly is getting discriminated against here?
This is the problem with looking only at raw numbers. On the surface without digging into the applicant pool, it might appear to the naïve observer that blacks were being discriminated against by Yale Med. Of course, Harmeet Dhillon was saying something entirely different.
Dr. Woods:
Only about 600 black students in the entire country have MCAT scores of at least 510, the bare minimum for an elite school. Meanwhile, there are 200 medical schools competing for that small number. The typical medical school admits 150 people per year. Yale admits only two-thirds of that number (104 students per year) and still has 11 black students entering each year, which is therefore a disproportionately high number of black students.
It boils down to this: the pool of Asian applicants with top-tier MCAT/GPA (say, 520+ and 3.95+) is much larger than the equivalent black pool. To achieve eleven black students per class (and maintain their “diversity” goals), Yale must extend far more interview offers to lower-scoring black applicants than to equally (or higher) scoring Asians. This yields the 29x odds ratio at the interview stage while still yielding more total Asian students enrolled (due to the much deeper Asian applicant pool at high scores and higher overall Asian application volume and qualification rates).
The short story here is that statistics alone do not a discrimination case make. Yale is actually admitting more black students than the raw numbers would suggest.
Dr. Woods:
… outcome disparities like these generally have benign explanations, but the activist class doesn’t want to hear them. Their identities revolve around grievance, and around the existence of secret conspiracies to keep their groups down. All disparities everywhere are ipso facto evidence of “discrimination,” which is why the whole racket is such a lawyers’ paradise.
The Yale Med story also demonstrates the effect that saber-rattling by activists has had on their admission practices. To avoid the “bad” news story of possible discrimination, Yale Med goes out of its way to boost the number of Blacks in each med school class. Of course, this is at the expense of better qualified Asian applicants.
Disparate impact has a place in the continuum of criteria used to make selection decisions for any activity whether it be entrance to a school or selection for a job. However, it should not be an overriding one. If it were, then why are there no women playing in the NBA?