This week the Justice Department’s civil-rights division sued the Massachusetts Department of Corrections for discriminating against women in its hiring of entry-level correction officers. The division used the disparate-impact theory in this suit: That is, it doesn’t say that the prison system actually treats female applicants in any way differently from male applicants, but just that women have a much harder time than men in passing the “physical abilities test” that’s required for the job. The division says that the test is “not job related and consistent with business necessity,” and thus violates federal civil-rights law.
Is this true? Well, neither the Justice Department nor the Massachusetts Department of Corrections is willing to talk about the case, since it’s being litigated. But through the magic of the Internet I think I’ve found a description of the test, here. I must say, it looks pretty job-related to me. In fact, the whole test is “a simulation of a response to an emergency” at a prison, involving violent inmates who have injured another guard; the injured guard must be dragged to safety and the inmates subdued.
It’s bad news that the Department is ramping up its use of the disparate-impact approach. These lawsuits don’t fight actual discrimination, and simply push employers into either abandoning perfectly legitimate selection devices or “getting their numbers right” by adopting surreptitious quotas. But, alas, that’s what we’re seeing from this administration.