Constitutional Law

Affirmative Action and the University: A Philosophical by Steven M. Cahn

By Steven M. Cahn

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Employers who argue against this theory of disparate impact generally do not challenge the claim that it is llnjust to continue a practice with exclusionary consequences when tllere are no otherwise good reasons for doing so. Instead, they either argue that there are good reasons for the practice-such as that it yields more qualified applicantsor that they will be forced by the recog11ition of this kind of injustice into numerical quotas that will result in new injustices. 55 The first point is not disputed by defenders of disparate impact theories.

39 Let me now summarize this discussion vvith some new terminology, that of process and outcome. 40 Process-based discrimination identifies bias in particular procedures. Outcome-based discrimination identifies bias with results, such as the distribution of groups in job categories. Title VII explicitly refuses to define discrimination in terms of outcomes. Before Wards Cove, however, it was interpreted to permit the use of outcome-based data as sufficient evidence for a prima facie case of process-based discrirrLination.

Lawrence Becker's proposal, set forth later in this volume, is a thoughtful suggestion about how these guidelines carL be met. NOTES 1. : United States Department of Education, Office of Educational Research and Improvement, 1990), p. 5. 2. , p. 6. 3. This hypothesis must remain speculative. Disciplines vary widely in the extent to which they track gender and minority status of new appointments. For example, the American Philosophical Association does not track the sex or race of new appointments in philosophy.

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