The Q-word as red herring: Why disparate impact liability does not induce hiring quotas

Texas Law Review

Volumn 74, Issue 7, 1996, Pages 1487-

  Ayres, Ian ^a   Siegelman, Peter ^a  

^a NONE

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EID: 0042877761     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (6)

1. 42 U.S.C. § 2000a (1994).
2. See ALFRED W. BLUMROSEN, MODERN LAW: THE LAW TRANSMISSION SYSTEM AND EQUAL EMPLOYMENT OPPORTUNITY 43 (1993) ("The common ground between [southern Democrats and conservative Republicans in the U.S. Senate] was the desire to minimize federal regulation. Conservative Republicans did not want business hobbled by extensive regulation, and the southern Democrats had the same conviction about the southern way of life [i.e., segregation]."); Michael E. Gold, Griggs' Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform, 7 INDUS. REL. L.J. 429, 503-08 (1985) (discussing the debates over the passage of Title VII of the 1964 Civil Rights Act in greater detail).
3. See ALFRED W. BLUMROSEN, MODERN LAW: THE LAW TRANSMISSION SYSTEM AND EQUAL EMPLOYMENT OPPORTUNITY 43 (1993) ("The common ground between [southern Democrats and conservative Republicans in the U.S. Senate] was the desire to minimize federal regulation. Conservative Republicans did not want business hobbled by extensive regulation, and the southern Democrats had the same conviction about the southern way of life [i.e., segregation]."); Michael E. Gold, Griggs' Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform, 7 INDUS. REL. L.J. 429, 503-08 (1985) (discussing the debates over the passage of Title VII of the 1964 Civil Rights Act in greater detail).
4. The debate has gone on more or less continuously since 1964, heightening in intensity when important changes to employment discrimination law-such as the 1972 and 1991 Civil Rights Acts-were considered by Congress. Recent attacks on the antidiscrimination principle by RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992) and DINESH D'SOUZA, THE END OF RACISM (1995), have received widespread notice.
5. The debate has gone on more or less continuously since 1964, heightening in intensity when important changes to employment discrimination law-such as the 1972 and 1991 Civil Rights Acts-were considered by Congress. Recent attacks on the antidiscrimination principle by RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992) and DINESH D'SOUZA, THE END OF RACISM (1995), have received widespread notice.
6. Although commentators seem to agree about the mechanism by which antidiscrimination laws are supposed to function, they naturally disagree on the actual effects of these laws. On the right, James P. Smith and Finis Welch argue that relative economic gains by blacks began well before the passage of the 1964 Civil Rights Act and should be attributed not to the law but to improvements in the quantity and quality of black education and to migration out of the South - that is, to market-based processes. James P. Smith & Finis R. Welch, Black Economic Progress After Myrdal, 27 J. ECON. LIT. 519, 528-47, 552-57 (1989). On the left, Richard Delgado and other critics have suggested that