This is a terrific piece, Ilana. Thanks for highlighting this particular case, and its un-intended consequences (pun intended). I appreciate how you tie this decision to the issues in identity politics and declining trust in institutions, and Americans’ unwillingness to listen to others - “a system where dissent brings moral condemnation.” I agree with your concern that issues have become moral ones and therefore impede meaningful dialogue. For me, the purity and sanctimony of moral views in politics are the greatest problem in American political culture today. (My latest post is about this in fact: https://raphaelrosen.substack.com/p/the-only-way-out-is-through-each) You're highlighting the Griggs vs. Duke Power case illuminates much of the cultural fissure that divides Americans. Thank you!
You misread Griggs, or perhaps, shorthand it too aggressively. "What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." 'Invidious' means something other than 'intent does not matter,' and the observation that the barriers subject to attack are the 'artificial, arbitrary, and unnecessary' ones highlights that the presumption is not that there was no racism or racist intent. I do not think that Griggs started or ended with the proposition that 'intent does not matter.' Rather, it recognized that intent is very difficult to prove, and that it is easy to craft neutral-appearing policies to effectuate racist aims. Duke Power Co. explicitly denied black people access to several roles throughout the company. Literally on Title VII's effective date, Duke Power Co. swapped out the racially discriminatory hiring and advancement requirements for testing requirements that effectively kept black people out of the same positions they were explicitly prohibited from taking prior to the effective date. The education requirements that made up the basis of this testing were not related to Duke Power Co.'s business aims and the white employees grandfathered in without diplomas under earlier policies showed no record of poor performance qua education. Disparate impact law has future twists and turns, but it definitely started in a place where racialized intent was inferred, just in a way that was novel and needed properly explained in Tit. VII's framework.
I encounter 'intent does not matter' in two different contexts. One is kind of an activist shortening of the larger empirical observation that racist consequences can follow from policies regardless of the original intents of those policies. That is, the true logic of the statement 'intent does not matter' runs in a different direction. It is an admonishment towards vigilance and encouragement to look beyond the traditional measures of what makes a policy 'good.' A policy can look good and justifiable 'on average,' in aggregate data, but when we lift the hood we find that the benefits are concentrated in one group of people (white people) and the disadvantages in another (black people). And this can occur even though before that analysis we may have assumed that every individual stood the same 70% chance of benefit or 30% chance of disadvantage. Knowing that 'intent does not matter' (the policy and its crafters may have been very far removed from explicit racial reasoning!) has helped us uncover and in some instances correct course when we realize the true effects of a neutral-seeming policy. 'Intent does not matter' does not mean (or, does not have to mean...) that the person crafting the policy was inherently racist because the policy churned out racist results, it just means that the racist results exist and are ripe for addressing regardless of racial motives. To me, 'intent does not matter' = the past lack of racial intent should not prevent us from addressing the present racial consequences.
The other context in which I encounter 'intent does not matter' is in the complex discussion of internal workplace grievances. You capture one stereotype of these discussions - that this issue of 'intent does not matter' cascades into a series of difficult to keep pace with code words, and that using the wrong words means your intent does not matter and you can be dismissed as inherently racist. But I recently was in a large, professional roundtable about microagressions and intent with people running legal Bar Associations and developing educational materials for lawyers. In that room, 'intent does not matter' was a way to make it clear to someone that 'that comment still hurt me.' It's very ordinary, in a childish way, when someone points out that you hurt them, to react and say, 'I did not mean it! I did not do anything wrong because I did not mean to do anything wrong!' But I think we learn as we progress through childhood the better answer is, 'I'm sorry, I'll try not to do that again' or 'I'm sorry, but I'm trying to get something done, and next time you might have to [stay out of my way] [respect my space] [&c]' Your intent in wishing me Merry Christmas does not matter because I'm your coworker and colleague and you know I'm Jewish and that being constantly inundated with Merry Christmases makes me feel othered and alone in a holiday season that seems so joyous for everyone else, please respect me.' 'Whatever your intent in wishing me Merry Christmas is, it reflects that you want to treat me as an interchangeable cog with all the assumptions you make about everyone else in the office, instead of respecting me as an individual.'
And I don't know, maybe it can be a little annoying working with people that use therapy-speak all the time, but that's a workplace culture issue that can be addressed in many many ways, without blowing it up into a bright line between left and right with national consequences.
P.S. As a nonbinary person, I know that there are people who look at, judge, and have negative opinions of me. They say mean and crude things to me that walk the line of acceptable and unacceptable. When I tell them to stop, they tell me, 'I did not mean it.' I think there are many people who take 'intent does not matter' to the extreme because it is so frustrating dealing with how effective a shield 'I did not mean it' is honored to be.
Intent has to matter. To extend your first paragraph. The ruling also meant that employers could not allow neutral polices that resulted in disproportionate outcomes. Nor could lack of evidence of any intent be used as lack of evidence of discrimination.
A society with a lot of trust (social capital, if you will) will tend to ascribe more charitable interpretations to the motives of others. If someone says something or does something that -- at first glance -- appears "wrong", others will tend to look for more favorable explanations. And will definitely consider intent.
I wonder if that goes the other way: as we enshrine principles that ignore intent, does that *automatically* diminish trust? To pick on Trump (or Trump's opposition), if Trump does something we object to, does the argument go like this?
1) I don't care about intent, the outcome is bad
2) (logical fallacy alert!). The result is bad, his intentions must have been bad.
3) Bad man Trump.
It seems to me that -- at least sometimes -- this is the logic. Asking "Where are you from" is labeled "racist" without establishing intent. And then work backwards to decide the questioner is in fact "racist" -- as if that was (in fact) their intent.
Which does leave open the question of how to establish intent. To me, part of that is looking for alternate explanations. Did the outcome have *nothing* to do with the person's actions? Is it a case of unforeseen consequences, where bad things happened that the actor could not have predicted, and despite the best of intentions?
Of course, I never liked Griggs, even though it might have been expedient at the time...
I think intent can be established by open and honest discussion. That is, trust, as you alluded to. We have to be willing to say what is necessary to say, and we have to be willing to listen when people say that what we feel is 'necessary' may actually be incorrect or harmful.
I think you overstate the consequences of Griggs. I think people who do not like the Griggs ruling have spent a few decades hyping up the idea that, kind of, any well-meaning business can find itself grist for the anti-discrimination mill. Disparate impact cases are incredibly complicated to bring and litigate, the statistical work that must be done for them is $$$$$$$$$$$$$$$$$$$$ and $$$$$$$$$$$$$$$$ of expert witnesses, and often times do not meet with much success. And if we are honest, the stakes are low - these companies are not being forced into some kind of purgatory where they get ten lashes every day for doing something that could be construed as discriminatory, they're being asked to participate in settlement discussions that result in policies with fairer racial outcomes. Who really loses when a company changes an unnecessary entry requirement?
And I think there is a tricky issue regarding the moral valence of 'discrimination.' Congress with Tit. VII made an affirmative decision that confronting race, sex, &c. in the workplace was necessary for American progress. American companies would not have produced the kind of wealth they have produced in the last 50 years if women or black people were denied access to the workforce, or faced such crude treatment as they advanced through organizations that they abandoned pursuing anything besides the lowest-paying roles. To get to the iPhone, or Humira, we needed more knowledge workers - and to get black people and women to train for and enter the economy to be knowledge workers, it was necessary to actively prevent discriminatory business practices /and their effects/.
So let's say a company has a neutral policy and not a racial intent in their heart or mind, but for whatever reason the employer's conviction is that an ACT score of 30 was required to do all mid-level managerial functions. The result of this policy is that people holding roles with the ACT requirement skew 95% white and 5% black, even as other roles in the company or other similar positions throughout the region have higher proportions of black workers. Tit. VII uses the word discrimination (and disparate impact) to describe this situation, but it can also be seen as an saying that racially disparate impacts are a canary in the coal mine that your hiring/promotion/retention decisions are prioritizing personal qualities that do not add up to good business. For the American economy to be successfully, we cannot have great racialized pools of poverty; therefore, if you're a business of large enough scale, you need to make sure your hiring/promotion/retention decisions do not exacerbate that condition. That's what congress said, that's what our courts have said, I do not see what makes this seem like such a great and cascading evil.
You propose:
1) I don't care about intent, the outcome is bad
2) (logical fallacy alert!). The result is bad, his intentions must have been bad.
3) Bad man Trump.
But I would counter:
1) I care slightly about intent as it helps us understand what happened, why, and how to fix it, and the outcome is bad.
2) The outcome is bad, therefore we need to take steps and change policies so that the outcome shifts from bad to good; and we should probably exert more diligence in our policymaking such that similar bad outcomes do not repeat unchecked.
3) Trump consistently refuses to examine the consequences of his policies, and his administration consistently refuses to do the basic civics homework to ensure his policies generate good outcomes. Or to ensure that his policies are implemented in Constitutional ways.
To claim "the outcome is bad" is to assume the conclusion -- that the policies were in fact discriminatory. I do not consider evidence of disparate outcomes sufficient evidence of a "bad outcome".
And that's my problem with Griggs in a nutshell.
You make a lot of claims that we should use something other than individual merit, but you don't actually propose anything in it's place except presumably some notion that "If blacks make up 15% of the US population, then 15% of the people in position <X> (without regard to what position <X> might be) should be black".
Do the NBA. And tell me why it's not 15% black. Should it be? Why not?
I might even agree with you, that there are things that are race-linked and make it harder for blacks to compete on a level playing field. But, those need to be addressed as those things, you can't fix it by later going back and pretending that somehow hiring someone other than the best qualified actually solves anything.
In other words, if (to use your example) whites score significantly higher on ACTs than blacks, then that's a problem to be addressed (and the solution isn't to just say "Well, we'll stop using standardized testing"). You don't solve the problem by throwing out the standards.
Yes and I think the piece of Griggs (and subsequent case law) that you are missing is that the racial disparity alone is not enough to bring a lawsuit. One must 1) tie the allegation to a specific policy, 2) demonstrate that the policy is the cause of the outcome, 3) demonstrate that the outcome is racially biased, AND 4) show that there is not a defensible reason for a policy.
So I can’t start (let alone win) my lawsuit just by saying ‘you haven’t met your quota of black workers, the community is 20% black therefore your workplace must be 20% black.’
I have to start the lawsuit by saying, ‘1) you impose a requirement that all employees have a 30 ACT score, 2) Only 1/4 of the African American population here has that score, and therefore the score is specifically preventing black people from taking the role, 3) as a result your workforce is only 5% black when we would expect it to be 20% black if the standards were neutral, AND 4) the ACT requirement of 30 is unnecessary because [for comparable jobs nationally, many employees have ACT scores as low was 22] [this job is a manual labor job and does not involve the skills the ACT tests for] [&c.].
And all of this must be alleged properly and ethically at the outset before the case can even be started. This involves a lot of research and expensive consultants to actually go out and find the evidence about what the job requirement is at other companies, and argue if that’s comparable, &c.
Then once the lawsuit is started, the sued company has the opportunity at every step to say, hey, the policy didn’t cause this outcome, other aspects of the community at large or the nature of this industry blah blah caused the outcome. And the sued company has the opportunity to say, hey, we understand our education requirements skew the applicant pool along racial lines, but the educational requirements are important because [it’s a law firm and you need a JD to get a license] [we’re firefighters and you need to be able to lift fifty pounds] [this is a nuclear power plant and we need specific industry credentials to prove you can maintain safety protocols].
So yes, lots of people agree with you, including the court in Griggs and ESPECIALLY the subsequent disparate impact case law, that a racially disparate outcome should not be the sole basis for court intervention.
Then taking it back around to this discussion of merit… well yes merit is a great and rational way to run a business, especially a large one with codified roles and specific expectations that must be mapped across tens or hundreds of employees doing similar tasks. But merit is an abstract category, there’s no vital statistic, no blood pressure cuff, that reveals our merit. Merit can be measured by things like grades and academic credentials and industry certificates and passing exams and proving you can lift certain weights in certain conditions. But if you’ve ever hired anyone… you know that individual applicants often have a mix of pros and cons, and making the hiring decision on ‘merit’ ultimately involves a value judgment that a 3.75 at such a school or earning such a degree is more meritorious than a 4.0 at another school or a different degree program. And being really really great at the ACT means you checked off a specific metric designed to make colleges feel more comfortable assessing the academic chops of 18 year olds… what it yields about the rest of your merit is TBD.
In Griggs, the court specifically found that the education requirements imposed - causing a rejection of black applicants - were not measuring merit. The education requirements did not reflect the education and skills of the people actually performing the role in question. Thus, the court found the policy was evidence of impermissible disparate impact, not only because of the racial disparity, but also because the policy causing the racial disparity did not serve its stated purpose of identifying meritorious workers. In fact Duke Power Co.’s high school
diploma requirement would have served to exclude several white employees who were currently and meritoriously filling the role.
So when I mention the racial skew that might result from demanding that applicants have a certain ACT score, I’m trying to draw attention to the fact that the skew IS a good reason to ask why you are requiring ACT scores at all. If it’s preventing black workers from adequately demonstrating their merit, then how many qualified white applicants are also out there but have low ACT scores or come from regions of the country that don’t even prioritize taking that test… And even this is just my personal take on why it is a good reason to investigate the racial disparity; it’s still insufficient for a court to find a legal violation - that would require proving why the ACT requirement is unrelated to the job function. This is a complex thing to prove and many companies succeed against disparate impact litigation precisely because of this difficulty. It’s expensive for the plaintiff-employees to generate the occupational data necessary to prove that a test or a standard is unnecessary.
‘You don’t solve the problem by throwing out the standards.’ - except when the problem is the standards, and that’s a hard thing to prove, which actually makes disparate impact litigation difficult for employees to bring and win, and which reflects the law’s acknowledgment of the concerns you are validly raising. It’s not that your concerns are wrong, it’s that they have been taken into account and addressed.
A problem with this analysis is no concrete examples of its application are given demonstrating contest,
For example, the author writes "When critics respond to Trump's statements or policies without considering his stated intentions, they reinforce the exact dynamic that drove many voters to him in the first place."
The author says we should consider intent. Before the Ukraine invasion, Russia was massing troops at the border. Putin explicitly stated his intention was not to invade. Wasn't it more valid to ignore Putin's stated intentions and assume that the existence of large numbers of Russian troops on the border meant Russia was planning an invasion?
Trump frequently lies about empirical reality (e.g. the size of in 2017 inauguration crowd, that inflation under Biden was the highest in history, that people are eating pets in Ohio) something he calls the weave. Given the weave, his statements of intent have an indeterminate truth value because they could be the result of weaving, like Putin's statement of intent.
It seems to me that the word "considering" is doing a lot of heavy lifting here with no explication of how one is to perform "considering" in situations where weaving may be happening.
In a democracy, intent has to matter—even for Putin. The challenge, as you note, is that people have incentives to conceal their true intent when they know it will be judged. Which means we can't always trust what they say. But if we care about democracy, the answer can’t be to declare that intent doesn’t matter (not that you’re necessarily saying that).
More concretely, when someone’s actions violate a principle essential to democracy, the focus should be on articulating that principle, why its violation matters, and applying that standard evenly.
So in Putin’s case, the key question becomes: what principle(s) did he violate? For instance, someone might say it has to do with the sovereignty of nations and the prohibition against wars of aggression—both foundational to international law and global stability. Then we might ask whether that principle is applied evenly across contexts and if not, why not?
Integrating intent isn't about not ever taking action or not standing up for something. It's about how we view people who disagree. So, another question becomes, could someone sympathize with Russia more than with Ukraine and not be a horrible person?
This is a terrific piece, Ilana. Thanks for highlighting this particular case, and its un-intended consequences (pun intended). I appreciate how you tie this decision to the issues in identity politics and declining trust in institutions, and Americans’ unwillingness to listen to others - “a system where dissent brings moral condemnation.” I agree with your concern that issues have become moral ones and therefore impede meaningful dialogue. For me, the purity and sanctimony of moral views in politics are the greatest problem in American political culture today. (My latest post is about this in fact: https://raphaelrosen.substack.com/p/the-only-way-out-is-through-each) You're highlighting the Griggs vs. Duke Power case illuminates much of the cultural fissure that divides Americans. Thank you!
You misread Griggs, or perhaps, shorthand it too aggressively. "What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." 'Invidious' means something other than 'intent does not matter,' and the observation that the barriers subject to attack are the 'artificial, arbitrary, and unnecessary' ones highlights that the presumption is not that there was no racism or racist intent. I do not think that Griggs started or ended with the proposition that 'intent does not matter.' Rather, it recognized that intent is very difficult to prove, and that it is easy to craft neutral-appearing policies to effectuate racist aims. Duke Power Co. explicitly denied black people access to several roles throughout the company. Literally on Title VII's effective date, Duke Power Co. swapped out the racially discriminatory hiring and advancement requirements for testing requirements that effectively kept black people out of the same positions they were explicitly prohibited from taking prior to the effective date. The education requirements that made up the basis of this testing were not related to Duke Power Co.'s business aims and the white employees grandfathered in without diplomas under earlier policies showed no record of poor performance qua education. Disparate impact law has future twists and turns, but it definitely started in a place where racialized intent was inferred, just in a way that was novel and needed properly explained in Tit. VII's framework.
I encounter 'intent does not matter' in two different contexts. One is kind of an activist shortening of the larger empirical observation that racist consequences can follow from policies regardless of the original intents of those policies. That is, the true logic of the statement 'intent does not matter' runs in a different direction. It is an admonishment towards vigilance and encouragement to look beyond the traditional measures of what makes a policy 'good.' A policy can look good and justifiable 'on average,' in aggregate data, but when we lift the hood we find that the benefits are concentrated in one group of people (white people) and the disadvantages in another (black people). And this can occur even though before that analysis we may have assumed that every individual stood the same 70% chance of benefit or 30% chance of disadvantage. Knowing that 'intent does not matter' (the policy and its crafters may have been very far removed from explicit racial reasoning!) has helped us uncover and in some instances correct course when we realize the true effects of a neutral-seeming policy. 'Intent does not matter' does not mean (or, does not have to mean...) that the person crafting the policy was inherently racist because the policy churned out racist results, it just means that the racist results exist and are ripe for addressing regardless of racial motives. To me, 'intent does not matter' = the past lack of racial intent should not prevent us from addressing the present racial consequences.
The other context in which I encounter 'intent does not matter' is in the complex discussion of internal workplace grievances. You capture one stereotype of these discussions - that this issue of 'intent does not matter' cascades into a series of difficult to keep pace with code words, and that using the wrong words means your intent does not matter and you can be dismissed as inherently racist. But I recently was in a large, professional roundtable about microagressions and intent with people running legal Bar Associations and developing educational materials for lawyers. In that room, 'intent does not matter' was a way to make it clear to someone that 'that comment still hurt me.' It's very ordinary, in a childish way, when someone points out that you hurt them, to react and say, 'I did not mean it! I did not do anything wrong because I did not mean to do anything wrong!' But I think we learn as we progress through childhood the better answer is, 'I'm sorry, I'll try not to do that again' or 'I'm sorry, but I'm trying to get something done, and next time you might have to [stay out of my way] [respect my space] [&c]' Your intent in wishing me Merry Christmas does not matter because I'm your coworker and colleague and you know I'm Jewish and that being constantly inundated with Merry Christmases makes me feel othered and alone in a holiday season that seems so joyous for everyone else, please respect me.' 'Whatever your intent in wishing me Merry Christmas is, it reflects that you want to treat me as an interchangeable cog with all the assumptions you make about everyone else in the office, instead of respecting me as an individual.'
And I don't know, maybe it can be a little annoying working with people that use therapy-speak all the time, but that's a workplace culture issue that can be addressed in many many ways, without blowing it up into a bright line between left and right with national consequences.
P.S. As a nonbinary person, I know that there are people who look at, judge, and have negative opinions of me. They say mean and crude things to me that walk the line of acceptable and unacceptable. When I tell them to stop, they tell me, 'I did not mean it.' I think there are many people who take 'intent does not matter' to the extreme because it is so frustrating dealing with how effective a shield 'I did not mean it' is honored to be.
Great essay!
Intent has to matter. To extend your first paragraph. The ruling also meant that employers could not allow neutral polices that resulted in disproportionate outcomes. Nor could lack of evidence of any intent be used as lack of evidence of discrimination.
A society with a lot of trust (social capital, if you will) will tend to ascribe more charitable interpretations to the motives of others. If someone says something or does something that -- at first glance -- appears "wrong", others will tend to look for more favorable explanations. And will definitely consider intent.
I wonder if that goes the other way: as we enshrine principles that ignore intent, does that *automatically* diminish trust? To pick on Trump (or Trump's opposition), if Trump does something we object to, does the argument go like this?
1) I don't care about intent, the outcome is bad
2) (logical fallacy alert!). The result is bad, his intentions must have been bad.
3) Bad man Trump.
It seems to me that -- at least sometimes -- this is the logic. Asking "Where are you from" is labeled "racist" without establishing intent. And then work backwards to decide the questioner is in fact "racist" -- as if that was (in fact) their intent.
Which does leave open the question of how to establish intent. To me, part of that is looking for alternate explanations. Did the outcome have *nothing* to do with the person's actions? Is it a case of unforeseen consequences, where bad things happened that the actor could not have predicted, and despite the best of intentions?
Of course, I never liked Griggs, even though it might have been expedient at the time...
I think intent can be established by open and honest discussion. That is, trust, as you alluded to. We have to be willing to say what is necessary to say, and we have to be willing to listen when people say that what we feel is 'necessary' may actually be incorrect or harmful.
I think you overstate the consequences of Griggs. I think people who do not like the Griggs ruling have spent a few decades hyping up the idea that, kind of, any well-meaning business can find itself grist for the anti-discrimination mill. Disparate impact cases are incredibly complicated to bring and litigate, the statistical work that must be done for them is $$$$$$$$$$$$$$$$$$$$ and $$$$$$$$$$$$$$$$ of expert witnesses, and often times do not meet with much success. And if we are honest, the stakes are low - these companies are not being forced into some kind of purgatory where they get ten lashes every day for doing something that could be construed as discriminatory, they're being asked to participate in settlement discussions that result in policies with fairer racial outcomes. Who really loses when a company changes an unnecessary entry requirement?
And I think there is a tricky issue regarding the moral valence of 'discrimination.' Congress with Tit. VII made an affirmative decision that confronting race, sex, &c. in the workplace was necessary for American progress. American companies would not have produced the kind of wealth they have produced in the last 50 years if women or black people were denied access to the workforce, or faced such crude treatment as they advanced through organizations that they abandoned pursuing anything besides the lowest-paying roles. To get to the iPhone, or Humira, we needed more knowledge workers - and to get black people and women to train for and enter the economy to be knowledge workers, it was necessary to actively prevent discriminatory business practices /and their effects/.
So let's say a company has a neutral policy and not a racial intent in their heart or mind, but for whatever reason the employer's conviction is that an ACT score of 30 was required to do all mid-level managerial functions. The result of this policy is that people holding roles with the ACT requirement skew 95% white and 5% black, even as other roles in the company or other similar positions throughout the region have higher proportions of black workers. Tit. VII uses the word discrimination (and disparate impact) to describe this situation, but it can also be seen as an saying that racially disparate impacts are a canary in the coal mine that your hiring/promotion/retention decisions are prioritizing personal qualities that do not add up to good business. For the American economy to be successfully, we cannot have great racialized pools of poverty; therefore, if you're a business of large enough scale, you need to make sure your hiring/promotion/retention decisions do not exacerbate that condition. That's what congress said, that's what our courts have said, I do not see what makes this seem like such a great and cascading evil.
You propose:
1) I don't care about intent, the outcome is bad
2) (logical fallacy alert!). The result is bad, his intentions must have been bad.
3) Bad man Trump.
But I would counter:
1) I care slightly about intent as it helps us understand what happened, why, and how to fix it, and the outcome is bad.
2) The outcome is bad, therefore we need to take steps and change policies so that the outcome shifts from bad to good; and we should probably exert more diligence in our policymaking such that similar bad outcomes do not repeat unchecked.
3) Trump consistently refuses to examine the consequences of his policies, and his administration consistently refuses to do the basic civics homework to ensure his policies generate good outcomes. Or to ensure that his policies are implemented in Constitutional ways.
4) Bad man Trump.
To claim "the outcome is bad" is to assume the conclusion -- that the policies were in fact discriminatory. I do not consider evidence of disparate outcomes sufficient evidence of a "bad outcome".
And that's my problem with Griggs in a nutshell.
You make a lot of claims that we should use something other than individual merit, but you don't actually propose anything in it's place except presumably some notion that "If blacks make up 15% of the US population, then 15% of the people in position <X> (without regard to what position <X> might be) should be black".
Do the NBA. And tell me why it's not 15% black. Should it be? Why not?
I might even agree with you, that there are things that are race-linked and make it harder for blacks to compete on a level playing field. But, those need to be addressed as those things, you can't fix it by later going back and pretending that somehow hiring someone other than the best qualified actually solves anything.
In other words, if (to use your example) whites score significantly higher on ACTs than blacks, then that's a problem to be addressed (and the solution isn't to just say "Well, we'll stop using standardized testing"). You don't solve the problem by throwing out the standards.
Yes and I think the piece of Griggs (and subsequent case law) that you are missing is that the racial disparity alone is not enough to bring a lawsuit. One must 1) tie the allegation to a specific policy, 2) demonstrate that the policy is the cause of the outcome, 3) demonstrate that the outcome is racially biased, AND 4) show that there is not a defensible reason for a policy.
So I can’t start (let alone win) my lawsuit just by saying ‘you haven’t met your quota of black workers, the community is 20% black therefore your workplace must be 20% black.’
I have to start the lawsuit by saying, ‘1) you impose a requirement that all employees have a 30 ACT score, 2) Only 1/4 of the African American population here has that score, and therefore the score is specifically preventing black people from taking the role, 3) as a result your workforce is only 5% black when we would expect it to be 20% black if the standards were neutral, AND 4) the ACT requirement of 30 is unnecessary because [for comparable jobs nationally, many employees have ACT scores as low was 22] [this job is a manual labor job and does not involve the skills the ACT tests for] [&c.].
And all of this must be alleged properly and ethically at the outset before the case can even be started. This involves a lot of research and expensive consultants to actually go out and find the evidence about what the job requirement is at other companies, and argue if that’s comparable, &c.
Then once the lawsuit is started, the sued company has the opportunity at every step to say, hey, the policy didn’t cause this outcome, other aspects of the community at large or the nature of this industry blah blah caused the outcome. And the sued company has the opportunity to say, hey, we understand our education requirements skew the applicant pool along racial lines, but the educational requirements are important because [it’s a law firm and you need a JD to get a license] [we’re firefighters and you need to be able to lift fifty pounds] [this is a nuclear power plant and we need specific industry credentials to prove you can maintain safety protocols].
So yes, lots of people agree with you, including the court in Griggs and ESPECIALLY the subsequent disparate impact case law, that a racially disparate outcome should not be the sole basis for court intervention.
Then taking it back around to this discussion of merit… well yes merit is a great and rational way to run a business, especially a large one with codified roles and specific expectations that must be mapped across tens or hundreds of employees doing similar tasks. But merit is an abstract category, there’s no vital statistic, no blood pressure cuff, that reveals our merit. Merit can be measured by things like grades and academic credentials and industry certificates and passing exams and proving you can lift certain weights in certain conditions. But if you’ve ever hired anyone… you know that individual applicants often have a mix of pros and cons, and making the hiring decision on ‘merit’ ultimately involves a value judgment that a 3.75 at such a school or earning such a degree is more meritorious than a 4.0 at another school or a different degree program. And being really really great at the ACT means you checked off a specific metric designed to make colleges feel more comfortable assessing the academic chops of 18 year olds… what it yields about the rest of your merit is TBD.
In Griggs, the court specifically found that the education requirements imposed - causing a rejection of black applicants - were not measuring merit. The education requirements did not reflect the education and skills of the people actually performing the role in question. Thus, the court found the policy was evidence of impermissible disparate impact, not only because of the racial disparity, but also because the policy causing the racial disparity did not serve its stated purpose of identifying meritorious workers. In fact Duke Power Co.’s high school
diploma requirement would have served to exclude several white employees who were currently and meritoriously filling the role.
So when I mention the racial skew that might result from demanding that applicants have a certain ACT score, I’m trying to draw attention to the fact that the skew IS a good reason to ask why you are requiring ACT scores at all. If it’s preventing black workers from adequately demonstrating their merit, then how many qualified white applicants are also out there but have low ACT scores or come from regions of the country that don’t even prioritize taking that test… And even this is just my personal take on why it is a good reason to investigate the racial disparity; it’s still insufficient for a court to find a legal violation - that would require proving why the ACT requirement is unrelated to the job function. This is a complex thing to prove and many companies succeed against disparate impact litigation precisely because of this difficulty. It’s expensive for the plaintiff-employees to generate the occupational data necessary to prove that a test or a standard is unnecessary.
‘You don’t solve the problem by throwing out the standards.’ - except when the problem is the standards, and that’s a hard thing to prove, which actually makes disparate impact litigation difficult for employees to bring and win, and which reflects the law’s acknowledgment of the concerns you are validly raising. It’s not that your concerns are wrong, it’s that they have been taken into account and addressed.
A problem with this analysis is no concrete examples of its application are given demonstrating contest,
For example, the author writes "When critics respond to Trump's statements or policies without considering his stated intentions, they reinforce the exact dynamic that drove many voters to him in the first place."
The author says we should consider intent. Before the Ukraine invasion, Russia was massing troops at the border. Putin explicitly stated his intention was not to invade. Wasn't it more valid to ignore Putin's stated intentions and assume that the existence of large numbers of Russian troops on the border meant Russia was planning an invasion?
Trump frequently lies about empirical reality (e.g. the size of in 2017 inauguration crowd, that inflation under Biden was the highest in history, that people are eating pets in Ohio) something he calls the weave. Given the weave, his statements of intent have an indeterminate truth value because they could be the result of weaving, like Putin's statement of intent.
It seems to me that the word "considering" is doing a lot of heavy lifting here with no explication of how one is to perform "considering" in situations where weaving may be happening.
Fair point.
In a democracy, intent has to matter—even for Putin. The challenge, as you note, is that people have incentives to conceal their true intent when they know it will be judged. Which means we can't always trust what they say. But if we care about democracy, the answer can’t be to declare that intent doesn’t matter (not that you’re necessarily saying that).
More concretely, when someone’s actions violate a principle essential to democracy, the focus should be on articulating that principle, why its violation matters, and applying that standard evenly.
So in Putin’s case, the key question becomes: what principle(s) did he violate? For instance, someone might say it has to do with the sovereignty of nations and the prohibition against wars of aggression—both foundational to international law and global stability. Then we might ask whether that principle is applied evenly across contexts and if not, why not?
Integrating intent isn't about not ever taking action or not standing up for something. It's about how we view people who disagree. So, another question becomes, could someone sympathize with Russia more than with Ukraine and not be a horrible person?