Q-Word As Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas

Abstract

The debates over the passage of Title VII of the 1964 Civil Rights Act\u27 were marked by passionate disagreement: conservatives objected to the legislation as an unwarranted interference with employers\u27 freedom of contract, while liberal supporters considered it a first step toward racial justice. While disagreement about what employment discrimination law should do has continued-in much the same form-to this day, there has been surprising consensus about the mechanism by which Title VII actually works: whether it is thought of as inadequate or excessive, Title VII is usually presumed to promote the hiring of those it is designed to protect.\u27The logic underlying this presumption is simple: by making employers liable for failures to hire based on race (or other forbidden grounds), the law raises the price of such discriminatory activity and produces less of it than would occur if employers were left completely free to hire whomever they wished