Citation

The National Urban League's Role in Developing Disparate Impact Doctrine in Employment Anti-Discrimination Law, 1910-1945

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Abstract:

The U.S. Supreme Court’s recent decision in Ricci v. DeStefano raises serious questions about the future of an employment discrimination doctrine known as “disparate impact” theory, which looks, not at evidence of an employer’s intent to discriminate, but instead at an employer’s use of selection devices that disproportionately disadvantage members of a protected class and are not necessary to the employer’s business interests. Common assumptions view disparate impact theory as a last-minute, ill-conceived invention of the EEOC following the passage of the employment nondiscrimination provisions of Title VII of the Civil Rights Act of 1964, but in this project I locate the origins of disparate impact theory in moderate experimentalist strategies aimed at improving minority employment opportunities as pioneered by the National Urban League (NUL). NUL’s first efforts on employment matters took place outside law, because there was at the time no law prohibiting employment discrimination by private employer. These efforts focused on encouraging employers to voluntarily eliminate practices that blocked minority hiring and advancement. After passage of the nation’s first state statute prohibiting private-sector employment discrimination, New York’s Ives Quinn Act (Act) of 1945, NUL activists, including Elmer Anderson Carter, who was appointed to the enforcement agency charged with implementing the Act, sought to use law to create incentives that would motivate employers to scrutinize and reform employment practices that posed structural bars to employment opportunities for racial minorities, without resort to litigation to adjudicate issues of invidious intent. These experimentalist regulatory strategies first pioneered at the state level provided the basis for the EEOC’s enforcement strategies in the early years of its existence, when it lacked litigating authority in the courts.
I suggest that a reevaluation of the historical origins and purpose of disparate impact theory should increase current policymakers’ appreciation of the doctrine’s value as a Asoft@ regulatory approach that can lead to an appropriate balancing of pro-employer concerns about preserving business discretion and enhancing business rationality with the civil rights movement=s longstanding goal of identifying and dismantling intent-neutral but historically laden sources of unnecessary structural exclusion.
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Name: 95th Annual Convention
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http://www.asalh.org


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MLA Citation:

Carle, Susan. "The National Urban League's Role in Developing Disparate Impact Doctrine in Employment Anti-Discrimination Law, 1910-1945" Paper presented at the annual meeting of the 95th Annual Convention, Raleigh Convention Center, Raleigh, North Carolina, <Not Available>. 2014-11-27 <http://citation.allacademic.com/meta/p435184_index.html>

APA Citation:

Carle, S. D. "The National Urban League's Role in Developing Disparate Impact Doctrine in Employment Anti-Discrimination Law, 1910-1945" Paper presented at the annual meeting of the 95th Annual Convention, Raleigh Convention Center, Raleigh, North Carolina <Not Available>. 2014-11-27 from http://citation.allacademic.com/meta/p435184_index.html

Publication Type: Invited Paper
Abstract: The U.S. Supreme Court’s recent decision in Ricci v. DeStefano raises serious questions about the future of an employment discrimination doctrine known as “disparate impact” theory, which looks, not at evidence of an employer’s intent to discriminate, but instead at an employer’s use of selection devices that disproportionately disadvantage members of a protected class and are not necessary to the employer’s business interests. Common assumptions view disparate impact theory as a last-minute, ill-conceived invention of the EEOC following the passage of the employment nondiscrimination provisions of Title VII of the Civil Rights Act of 1964, but in this project I locate the origins of disparate impact theory in moderate experimentalist strategies aimed at improving minority employment opportunities as pioneered by the National Urban League (NUL). NUL’s first efforts on employment matters took place outside law, because there was at the time no law prohibiting employment discrimination by private employer. These efforts focused on encouraging employers to voluntarily eliminate practices that blocked minority hiring and advancement. After passage of the nation’s first state statute prohibiting private-sector employment discrimination, New York’s Ives Quinn Act (Act) of 1945, NUL activists, including Elmer Anderson Carter, who was appointed to the enforcement agency charged with implementing the Act, sought to use law to create incentives that would motivate employers to scrutinize and reform employment practices that posed structural bars to employment opportunities for racial minorities, without resort to litigation to adjudicate issues of invidious intent. These experimentalist regulatory strategies first pioneered at the state level provided the basis for the EEOC’s enforcement strategies in the early years of its existence, when it lacked litigating authority in the courts.
I suggest that a reevaluation of the historical origins and purpose of disparate impact theory should increase current policymakers’ appreciation of the doctrine’s value as a Asoft@ regulatory approach that can lead to an appropriate balancing of pro-employer concerns about preserving business discretion and enhancing business rationality with the civil rights movement=s longstanding goal of identifying and dismantling intent-neutral but historically laden sources of unnecessary structural exclusion.


Similar Titles:
The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases

Shifting Alignments in Political Authority: An Examination of the Role of National Government Policies in Driving Urban Development


 
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