Costs, Profits, and Equal Employment Opportunity

Abstract

Professor Brodin explores the clash between the antidiscrimination principle embodied in Title VII of the Civil Rights Act of 1964, and employer self-interest in minimizing costs and maximizing profits. While precedent explicitly rejects a cost defense to an action brought under the statute, some courts have subtly adopted the equivalent under the guise of the business necessity defense to a disparate impact action. Permitting employers to utilize selection devices that disproportionately exclude minorities or women merely because they are less expensive than more sophisticated personnel procedures without discriminatory impact violates Title VII’s mandate, which imposes the costs of equal opportunity on employers in much the same way that environmental regulations do on polluters