Politics & Policy

Argument from Disparity

Discrimination cases use statistics to put the burden of proof on the accused.

A longstanding legal charade was played out again recently, when Federal Express paid $3 million to settle an employment-discrimination case brought by the U.S. Department of Labor.

Federal Express was accused of both racial discrimination and sex discrimination. FedEx denied it.

Why then did they pay the $3 million? Because it can cost a lot more than $3 million to fight a discrimination case. Years ago, the Sears department-store chain spent $20 million fighting a sex-discrimination charge that took 15 years to make its way through the legal labyrinth. In the end, Sears won — if spending $20 million and getting nothing in return can be called winning.

FedEx was apparently not prepared to spend that kind of money and that kind of time fighting a discrimination case. The net result is that the government and much of the media can now claim that race, sex, and other forms of discrimination are rampant, considering how many anti-discrimination cases have been “won.”

At the heart of these legal charades is the prevailing dogma that statistical disparities in employment — or mortgage lending, or anything else — show discrimination. In both the FedEx case and the earlier Sears case, statistical differences between the mix of the workforce and the population mix were the key evidence presented to show discrimination.

In the Sears case, there was not even one woman who worked in any of the company’s 900 stores who claimed to have been discriminated against. It was all a matter of statistics — and of the arbitrary dogma that statistical disparities show discrimination.

Once statistical disparities have been demonstrated, the burden of proof shifts to the employer to prove his innocence, contrary to centuries of legal tradition that the burden of proof is on the accuser.

No burden of proof whatever is put on those who argue as if there would be a random distribution of racial and other groups in the absence of discrimination.

Happenstances may be random but performances seldom are. Most people are right-handed but, among major-league hitters with lifetime batting averages of .330 and up, there have been 15 left-handed batters and only 5 right-handed batters since the beginning of the 20th century. All the best-selling beers in the United States were created by people of German ancestry. Anyone who follows professional basketball knows that most of the leading stars are black.

Some years ago, a study of National Merit Scholarship finalists found that more than half were first-born children, even in five-child families. Jews are less than one percent of the world’s population but they won 14 percent of the Nobel Prizes in literature and the sciences during the first half of the 20th century, and 29 percent during the second half.

It would be no problem at all to fill this whole column with examples from around the world of gross statistical disparities in outcomes, in situations where discrimination was not involved. But those who take the opposite view — that numbers show discrimination — do not have to produce one speck of evidence to back up that sweeping conclusion.

Human beings are not random events. Individuals and groups have different histories, cultures, skills, and attitudes. Why would anyone expect them to be distributed anywhere in a pattern based on statistical theories of random events? Much less make the absence of such a pattern become a basis for multi-million-dollar lawsuits?

However little evidence or logic there may be behind the belief that an absence of random distribution shows discrimination, there are nevertheless strong incentives for some people to cling to that belief anyway. Those who lag behind — whether educationally, economically, or otherwise — have every incentive to think of themselves as victims of those who are more successful.

Those who want their votes have every incentive to go along, or even to actively promote that idea. So do those who want to see issues as moral melodramas, starring themselves on the side of the angels against the forces of evil. The result is an invincible dogma — and a polarized country.

 —Thomas Sowell is a senior fellow at the Hoover Institution. © 2012 Creators Syndicate, Inc.

Thomas SowellThomas Sowell is an American economist, social theorist, political philosopher, and author, whose books include Basic Economics. He is currently senior fellow at the Hoover Institution, Stanford University.

Most Popular

U.S.

The Lies We’re Told about the American Story

Editor’s Note: The following essay was adapted from remarks delivered to the annual dinner of the Lincoln Club of Orange County, in California, on October 4. Every American heart must break when lies are told to boys and girls, who then grow up to think the worst about their past: that the American ... Read More
U.S.

The Lies We’re Told about the American Story

Editor’s Note: The following essay was adapted from remarks delivered to the annual dinner of the Lincoln Club of Orange County, in California, on October 4. Every American heart must break when lies are told to boys and girls, who then grow up to think the worst about their past: that the American ... Read More
Film & TV

Bill Murray: The King of Cool

Bill Murray’s Bill Murray impression is priceless in On the Rocks, the way John Wayne did a fantastic John Wayne parody in True Grit and Al Pacino found a new level of Pacino-ness in Scent of a Woman. I want to quote every line of dialogue Murray delivers in his new movie for Apple TV+ -- every hilarious piece ... Read More
Film & TV

Bill Murray: The King of Cool

Bill Murray’s Bill Murray impression is priceless in On the Rocks, the way John Wayne did a fantastic John Wayne parody in True Grit and Al Pacino found a new level of Pacino-ness in Scent of a Woman. I want to quote every line of dialogue Murray delivers in his new movie for Apple TV+ -- every hilarious piece ... Read More
Books

Orwell, Huxley, and Us

To hear some people tell it, America entered a dystopia long before the coronavirus and measures undertaken to combat it altered everyday life almost to the point of unrecognizability. As for which dystopia, and when, well — that depends on whom one asks. For many on the left, the annus horribilis was 2016, ... Read More
Books

Orwell, Huxley, and Us

To hear some people tell it, America entered a dystopia long before the coronavirus and measures undertaken to combat it altered everyday life almost to the point of unrecognizability. As for which dystopia, and when, well — that depends on whom one asks. For many on the left, the annus horribilis was 2016, ... Read More
Media

The Media’s Shameful Hunter Biden Abdication

In an interview with National Public Radio’s public editor today, Terence Samuel, managing editor for news, explained why readers haven’t seen any stories about the New York Post’s Hunter Biden email scoop. “We don’t want to waste our time on stories that are not really stories, and we don’t want ... Read More
Media

The Media’s Shameful Hunter Biden Abdication

In an interview with National Public Radio’s public editor today, Terence Samuel, managing editor for news, explained why readers haven’t seen any stories about the New York Post’s Hunter Biden email scoop. “We don’t want to waste our time on stories that are not really stories, and we don’t want ... Read More