requiring separate cars for whites and blacks. Left to itself, thernrailroad preferred the simplicity of carrying all passengers in thernsame cars. Plessy v. Ferguson therefore ratified the prejudicesrnof Louisiana legislators, but it also legitimized the power ofrngovernment to force racial discrimination upon businessesrnthat did not want to discriminate.rnBefore the passage of civil rights laws, lax public order helpedrnto force businessmen to discriminate. When employers andrnhotel-keepers tried to integrate their businesses—for purelyrneconomic reasons—neighborhood thugs might smash theirrnwindows or threaten violence. The police, who shared prevailingrnprejudices, looked the other way. People for whom prejudicernhad no economic cost (the neighborhood thugs) werernpermitted to force prejudice upon people for whom it didrnhave a cost (business proprietors).rnWhen the Civil Rights Act of 1964 banned discriminationrnit required many employers to do something they wanted to dornanvway. It opened up important opportunities for blacks by doingrnaway with Jim Crow laws, biased law enforcement, and arnhost of local regulations that prevented employment of blacks.rnAll the new law should have done was sweep away this web ofrnmarket distortions, but it did not leave well enough alone, histead,rnit replaced one form of coercion with another. JimrnCrow forbade certain business relations; antidiscrimination lawrnrequires them even when a participant is unwilling. The profitrnmotive ordinarily keeps employers from indulging in irrationalrnprejudices, but in genuinely free markets, they should bernfree to choose their employees for good reasons, bad reasons, orrnno reason at all. Some would argue that any racial discriminationrnthat persisted even in a completely free market wouldrnstill be so odious that government power should be used tornstamp it out. I lowevcr, that is not where the exercise of governmentrnpower stops.rnAfter passage of the Civil Rights Act of 1964, most cases ofrndeliberate discrimination in employment disappeared.rnSo quickly did intentional discrimination disappear that enforcementrnof antidiscrimination norms promptly turned tornunintentional discrimination—acts that the layman wouldrnhardly recognize as discrimination at all. Within just sevenrnvears of the passage of the act, the doctrine of disparate impactrn—a doctrine never imagined by Congress—had alreadyrnworked its wav through the judicial system and been ratified byrnthe Supreme Court.rnIn its 1970 Griggs v. Duke Power decision, the Court set asiderndiscriminatory intent entirely and ruled that an employer couldrnbe held liable for discriminatory effect whatever his motivesrnmight be. Disparate impact works like this: if an employer decidesrnthat he will hire only high school graduates, and it can bernshown that blacks arc less likely than whites to have diplomas,rnthen blacks have suffered a potentially illegal “disparate impact.”rnIt makes no difference if high school graduates of allrnraces arc treated with scrupulous impartiality. If the diplomarnrequirement is more of an employment obstacle to blacks (orrnto Hispanies, or women, or American Indians, or any other protectedrngroup) than to whites, the employer must justify his requirement.rnIf he cannot justify it—in court—he is guiltv ofrnillegal racial discrimination.rnUntil 1991, courts held that an employer had to prove thatrnhis job standard, even if applied in an entirely color-blind fashion,rnwas a strict “business necessity.” (The Civil Rights Act ofrn1991, which first codified the Supreme Court’s disparate impactrnthinking into law, changes the rules slightly. An employmentrnstandard must now be “job related for the position inrnquestion and have a significant relationship to business necessity.”rnLitigation will determine what these phrases mean.)rnCleariy, the only strict business necessity is rock-bottom minimumrnqualifications for the job. If, by raising his standardsrnabove bare necessity, an employer made it less likely that blacksrnwould be able to meet those standards, he was guilty of discriminationrnbecause of disparate impact.rnDisparate impact doctrine has outlawed many traditionalrnpractices. Until recently, most police and fire departmentsrnwould not hire anyone who had been dishonorably dischargedrnfrom the military. Since proportionately more blacks thanrnwhites arc so discharged, questions about military records haverna disparate impact and are therefore illegal. Likewise, employersrnmay not investigate the credit histories of potential employees,rneven for jobs that require financial probity. Blacks havernworse credit histories than whites, so a credit check has a disparaternimpact. In the name of nondiscrimination, employersrnare therefore shut off from useful information about potentialrnemployees.rnEmployers are also denied the results of standardized tests.rnWhites (and Asians) get better scores on all meaningful standardizedrntests than do blacks (or Hispanies). Tests thereforernhave a disparate impact, so an employer must show that a testrnmeasures only the abilities needed to do the job and nothingrnmore. It is so expensive to devise specific tests for every job thatrnmost employers have abandoned employee testing. Althoughrnmost Americans have never heard of it, the doctrine of disparaternimpact is a nightmare burden for American businesses.rnIn our country today, it is against the law to hire the best possiblernwork force regardless of race. The highest possible standards,rnno matter how equitably applied, produce a disproportionatelyrnwhite work force because whites are better qualified.rnThere are exceptions to this rule. Owners of professionalrnbasketball teams require that their employees meet the highestrnpossible standards, with the result that nearly 80 percent ofrnprofessional basketball players are black. These standards haverna “disparate impact” on whites, but are permissible for two reasons:rnwhites are not a protected class, and the standards meetrnthe “business necessity” test. In other professions, the highestrnpossible standards cannot be so easily tied to “business necessity,”rnso if thev have a disparate impact on nonwhites they arernprobably illegal.rnIt is the doctrine of disparate impact that explains why thernquestion of quotas always hovers over any discussion of currentrnantidiscrimination law. Only by having a work force that mirrorsrnthe ethnic makeup of the surrounding community—thatrnis to say, by establishing quotas—can an employer be absolutelyrnsafe from liability. An employer with a disproportionatelyrnwhite work force can always be called on the carpet and forcedrnto demonstrate that the hiring standards that produced the disproportionrnare vital to doing business. The circumstantial evidencernof the composition of his work force—mere statistics—rnis sufficient to make him guilty until proven innocent. In nornother judicial proceedings is an American citizen presumedrnguilty. Ordinarily, in order to get a suit-proof, multiracialrnwork force, a company must establish hiring quotas. This generallyrnmeans discrimination against whites, but since whites arernnot a protected group such discrimination is permitted. Ironically,rnalthough quotas are the only route to security, the wordrnis in disfavor even among supporters of affirmative action.rnOCTOBER 1993/15rnrnrn