Fairness Feuds: Competing Conceptions of Title VII Discriminatory Testing

Abstract

On the twenty-year anniversary of the Civil Rights Act of 1991, this Article examines “reverse discrimination” lawsuits filed by whites who contend that an employment testing practice discriminates against them in violation of Title VII. It asserts that Title VII discriminatory testing claims filed by whites are typically explicit or implicit claims that the failure to hire them in accordance with rank-order scores on general intelligence tests is racially motivated and intended to decrease the number of whites selected. It also contends that the central logic of reverse discrimination testing challenges rests on a now scientifically questioned theory — the theory that selecting employees based solely on “general intelligence” (“g”) employment tests is superior to all available alternative employment criteria. This Article describes the research and development of new alternative employment tests and testing practices with smaller racial differences in scores than sole reliance on “g”-based employment tests. It also relays the findings of new research questioning the previously established conclusions that statistically defined “test bias” in employment testing is nonexistent and that, if test bias exists, it only occurs in a manner that favors racial minority groups. Finally, this Article concludes that much of the statistical and empirical research on employment testing spurred by the passage of the 1991 Civil Rights Act presents substantial hurdles for the most common reverse discrimination testing claims.

Keywords: employment discrimination, employment tests, discriminatory testing, employment testing, Title VII, reverse discrimination, general intelligence tests, Civil Rights Act of 1991, race norming, racially discriminatory testing