Given recent Supreme Court decisions, I’m not sure how much longer this will be a true statement of US law.
The most recent case held that fear of disparate impact lawsuits was not a justification for a disparate treatment (throwing out a promotion test because no minority passed). In a concurrence (agree on result, not reasoning), one justice noted that disparate impact treatment law for employment is in considerable tension with the constitutional doctrine on equal protection—ConLaw equal protection does not have a disparate treatment component, while you correctly note that private employment discrimination law does.
There are two possible resolutions of this legal tension: a) Employers are screwed—any choice subjects them to either (1) a valid disparate impact claim or (2) a valid disparate treatment claim. b) Disparate impact claims will be tightened substantially—to the point that one would likely need to prove a facially neutral test was selected primarily for its disparate impact. This is functionally equivalent to lowering the legally required evidence to show disparate treatment.
My read of the legal landscape is that (b) is massively more likely than (a). (> .99). The resolution of that tension might even make private disparate impact claims practically impossible to prove. Or disparate impact liability might even be ruled unconstitutional (in the absence of disparate treatment evidence).
Although IQ tests were initially outlawed by the courts on disparate impact grounds, I believe that Congress enacted these IQ test restrictions directly into civil rights laws so they can’t be overturned by courts except on constitutional grounds, which seem unlikely.
The test makers in the Ricci v. DeStefano case you cite went out of their way to have their tests not be just IQ tests.
I’ve looked briefly, and I don’t see a federal statutory cite that explicitly prohibits IQ testing. Most employer decisions not to administer an IQ can be almost completely explained by a risk-averse unwillingness to defend IQ tests. Defending lawsuits costs money, even if one wins, and litigation is always a risk.
In short, I think employer behavior avoiding IQ tests is expect-value maximizing for individual employers—for tragedy-of-the-commons reasons, this might be bad for employers overall. Most importantly, I don’t think there is a federal law specifically prohibiting IQ testing for employment, it’s just expensive for an employer to show that higher IQ is helpful for the specific position the potential employee is seeking.
That article is consistent with my brief legal research, and increases my confidence that Congress has not explicitly prohibited IQ tests by statute, regardless of whether a potential employee could show disparate impact through use of the IQ test. I think this quote from the article is a reasonable statement of current law:
If one reads between the lines of Griggs and all other disparate impact type cases, one may intuit that the real holding is that any moron can do prole jobs such as repairing electrical power lines, and therefore any type of hiring criteria that tends to discriminate against blacks is going to be illegal. But the rarefied world of upper-middle-class jobs are obvious not included.
I make no comment on whether the current state of the law optimizes what it claims, or what it should optimize in some moral sense.
Given recent Supreme Court decisions, I’m not sure how much longer this will be a true statement of US law.
The most recent case held that fear of disparate impact lawsuits was not a justification for a disparate treatment (throwing out a promotion test because no minority passed). In a concurrence (agree on result, not reasoning), one justice noted that disparate impact treatment law for employment is in considerable tension with the constitutional doctrine on equal protection—ConLaw equal protection does not have a disparate treatment component, while you correctly note that private employment discrimination law does.
There are two possible resolutions of this legal tension:
a) Employers are screwed—any choice subjects them to either (1) a valid disparate impact claim or (2) a valid disparate treatment claim.
b) Disparate impact claims will be tightened substantially—to the point that one would likely need to prove a facially neutral test was selected primarily for its disparate impact. This is functionally equivalent to lowering the legally required evidence to show disparate treatment.
My read of the legal landscape is that (b) is massively more likely than (a). (> .99). The resolution of that tension might even make private disparate impact claims practically impossible to prove. Or disparate impact liability might even be ruled unconstitutional (in the absence of disparate treatment evidence).
Although IQ tests were initially outlawed by the courts on disparate impact grounds, I believe that Congress enacted these IQ test restrictions directly into civil rights laws so they can’t be overturned by courts except on constitutional grounds, which seem unlikely.
The test makers in the Ricci v. DeStefano case you cite went out of their way to have their tests not be just IQ tests.
I’ve looked briefly, and I don’t see a federal statutory cite that explicitly prohibits IQ testing. Most employer decisions not to administer an IQ can be almost completely explained by a risk-averse unwillingness to defend IQ tests. Defending lawsuits costs money, even if one wins, and litigation is always a risk.
In short, I think employer behavior avoiding IQ tests is expect-value maximizing for individual employers—for tragedy-of-the-commons reasons, this might be bad for employers overall. Most importantly, I don’t think there is a federal law specifically prohibiting IQ testing for employment, it’s just expensive for an employer to show that higher IQ is helpful for the specific position the potential employee is seeking.
See this.
That article is consistent with my brief legal research, and increases my confidence that Congress has not explicitly prohibited IQ tests by statute, regardless of whether a potential employee could show disparate impact through use of the IQ test. I think this quote from the article is a reasonable statement of current law:
I make no comment on whether the current state of the law optimizes what it claims, or what it should optimize in some moral sense.