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The Rise of the Statistical Parity

Theory of Enforcement and its Effect

on Productivity . . .

The Legal Principles Applicable to

Statistical Analysis in the Enforcement

of Title VII

The Government Challenge to Traditional

Merit Criteria

D. The Concentration on Numbers and

Ratios in Enforcing the Executive Order

E.

United Steelworkers v. Weber The

Employer's High Tightrope Without a Net

III. The Government Should Declare that Quotas

and Preferences are Contrary to Public Policy

Guidelines on the Proper Role of Statistics

Should Be Issued by the Enforcement Agencies .

IV.

V.

The Job Relatedness Standard Must Be Interpreted

in a Manner Which Ensures that Employers May

Safely Rely Upon Fair and Reasonable Selection

Systems

VI.

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1

35

The Uniform Selection Guidelines Must Be

Revised to Take Account of Current Expert

Opinion

43

VII.

Substantial Reform of the Executive Order

Program is Necessary to Bring it Within the

Congressional Authority and Intent

49

55

6

I.

TESTIMONY OF MICHAEL A. WARNER, ESQ.
REGARDING EQUAL EMPLOYMENT

OPPORTUNITY LAW REFORM

BEFORE THE

SENATE LABOR AND HUMAN RESOURCES COMMITTEE

INTRODUCTION

Mr. Chairman:

Thank you for inviting me to share my

views on the subject of how best to realize our national goal of improving employment opportunities.

I have been in the private practice of law for over 15 years and during the last 12 years I have actively represented employers in labor and personnel matters, with a heavy emphasis on employment discrimination matters. This has given me the opportunity to observe most immediately and specifically the development of the law and enforcement trends in this most controversial area. It has also allowed me to observe at extremely close hand the actual day-to-day effects of the enforcement of the employment discrimination laws on numerous employers of all types and sizes and in a variety of industries. Indeed, because my practice brings me into immediate and continual contact with line management decision makers and employees who experience the direct effect of these laws on a daily basis, I hope I can give some practical, day-todày meaning to the issues which have been so ably debated by the other witnesses who have appeared before you.

2.

Given the overall topic of these hearings and my

experience under the anti-discrimination laws, I must observe at the outset that while it should be the objective of the anti-discrimination laws to ensure equal opportunity among those of comparable qualifications and abilities, it is naive to assume that the enforcement of those laws standing alone can erase all of the differences in employment participation levels and income among different groups. To the extent that the statistical disparities upon which so much of the EEO enforcement effort is based are the product of historical and societal factors over which the employer has little or no control, it is wrong, indeed often counterproductive, to premise enforcement of the laws on the assumption that the disparity is solely the result of employment discrimination. Thus, for example, as Thomas Sowell, the Black economist, notes in Ethnic America

(Basic Books, Inc.) at pp. 290-91:

While clear instances of discrimination have
been encountered by many ethnic groups at various
periods in their history, determining how much
of the group differences in income, occupation
or housing represent discrimination is a complex
and uncertain process. The very meaning of dis-
crimination varies across a spectrum, from under-
paying individuals for their current capabilities
to the existence of historic barriers that in-
hibited the development of capabilities. Employer
discrimination as an explanation of current income
differences usually means that a given group is
underpaid relative to its current capabilities.
Historical and current empirical evidence on this
point is far from conclusive, despite the axioma-
tic certainty of many assertions.

3

Similarly, as the Black economist, Bernard Anderson, wrote

in "The State of Black America 1980":

Race discrimination alone is not the only
barrier to greater economic opportunity, and
little will be gained by failing to confront
the issues raised by the changing domain of
opportunity for the better prepared black
workers, as compared with others who because
of persistent unemployment, poor education,
poor housing, negative attitudes toward work
and toward society at large have become
increasingly isolated from economic progress.

Quoted in Auletta, "The Underclass-III," The New Yorker,
November 30, 1981, at p. 134.

Thus, if our national goal of improving employment opportunities for women and minorities is to be realized, one must look at many factors and programs beyond the anti-discrimination laws for solutions. The purpose of my testimony, however, is to provide a realistic appraisal of the capacity of the anti-discrimination laws to contribute to increasing employment opportunities. In so doing, I hope I can convince you to share my increasing disenchantment with the many enforcement trends which have had a substantial adverse effect on business productivity and efficiency, and which have not served the objectives of Congress in enacting anti-discrimination laws.

This testimony incorporates in substantial part testi-
mony presented by Michael A. Warner regarding Affirmative
Action and Equal Protection before the Subcommittee On
The Constitution of the Senate Judiciary Committee on
July 16, 1981.

At the risk of overgeneralization, I will attempt to summarize my overall conclusions with respect to the substantive policies which should govern the equal employment opportunity effort:

(1) Employers should expect nothing less than vigorous enforcement of the anti-discrimination laws but this enforcement must be rational and realistic if it is to be truly effective and credible.

(2) The awarding of relief to specifically identified victims of proven discrimination in the form of rights to future vacancies is fully consistent with the anti-discrimination laws. While such awards might be characterized as quotas, they may and should be recognized as permissible legal remedies to place the victims of an employer's

discrimination into their "rightful place"

-

the positions

they would have held "but for" the employer's discrimination.

(3) On the other hand, to disregard relative merit

and to make employment decisions by granting preferential treatment on the basis of race, sex or other protected group status in order to change alleged statistical imbalances in the work force is wrong legally, constitutionally and morally, and the adverse consequences flowing from such quota and preferentially-based decision making more than cancel out any benefits which may be derived.