Bell Curve

500 Living Together Afimtive Action in the Workplace 501For such advocates, it makes no difference if the tests are reliable andvalid predictors of job performance. If a disadvantaged group performsat a lower level, to these advocates, it is self-evidently society's fault,and government must take whatever steps are necessary to bring the disadvantagedgroup up to the level of other groups, ensuring equal employmentand income in the meantime. Sometimes this argument iscouched specifically in terms of the black experience in the UnitedStates, sometimes as part of a broader argument for an egalitarianagenda.j5Our dispute with the egalitarian position has to be carried out on ethicaland philosophical grounds, for there is nothing much to argue aboutin the facts. Briefly, we differ with the contemporary advocates of continuedquotalike hiring requirements on two counts.First, we adhere to the 1964 view of what constitutes fairness, exemplifiedby Hubert Humphrey, who, in fighting for passage of the CivilRights Act of 1964, declared that it "does not limit the employer's frcedornto hire, fire, promote, or demote for any reason-or for no reasons-solong as his action is not based on race," and then volunteeredto eat the blll in public if he were wrong about what the new law woulddo." Like the senator, we reject equality of outcome as an appropriategoal. Equality of opportunity is the test most consistent with the vis~onof the Congress that enacted the law in 1964, and for that matter withthe vision that animated the Constitution. The appropriate goal is a johmarket in which people are not favored or held back simply hecause oftheir race. Nothing in nature or knowledge, however, says that all groupsshould be equally successful in every walk of life. This may he "unfair"in the same sense that life is unfair, but it need not mean that humanbeings are treating one another unfairly.Consider the convenient and appropriate case of athletic performance.By the standard of proportional equality, there are "too many"black players in the National Basketball Association compared to thenumber of white players. No one thinks this is unjust. When professionaltennis equalized the purses for male and women champions, it didnot also require the men and women to play against other, hecauseeveryone recognized that all the top men would almost always beat allof the top women. If men and women players were ranked in a singlelist, would there be "too many" males among the top 100 tennis playersin the world? Any particular disproportion may be unfair, but it may not.It may be less obvious why there are disproportions in other pursuits,hence harder to tell whether they are fair, but the principle is the same,and simple: If the quality of performance fairly differs among individuals,it may fairly differ amongIf a disproportion is fair, then"correcting" it-making it proportional-may produce unfairness alongwith equal representation. We believe that is what has happened in thecase of current forms of affirmative action. People who bring equal qualificationsto a job should have an equal shot at being hired, and affirmativeaction regulations, originally intended to promote precisely thatgoal, now impede it.Second, the debate will be healthier if those who want private businessesto support social objectives openly acknowledge that such supportdoes in fact entail costs in efficiency and productivity, hence thebenefits that flow from greater efficiency and higher productivity-includinga stronger economy for American society as a wh01e.l~~' Nor arethe costs in productivity unique to private businesses. When a policedepartment hires people who become less effective police officers thanthose it could have hired, the department loses some of its capability toprovide law enforcement. Affirmative action can cost something in governmentservices every bit as much as in the productivity of a privatebusiness.We do not require equal outcomes, hut we do want fair treatment.What policy alternatives might be employed to bring about this stateof affairs in hiring and promotion? Before exploring four alternatives,let us say clearly that the worst alternative, the one we do not discussfurther, is what we are now doing: not raising the question at all andproceeding as if there are easy and costless ways to achieving fairness.Alternative I: Creating Tests That Are Legal Under th CurrentRequirementsIn theory, employers could construct job-specific tests that meet theSupreme Court's (and now the Congress's) definition of fairness. Itwould be expensive, and the tests would seldom (if ever) be more predictivethan a general test of cognitive ability. But it is feasible. The difficultyis that predictiveness comes primarily from the tests' measure ofg. Therefore, although they cannot be faulted under the other legal requirements,they will nonetheless be thrown out because of disparateimpact. This is what has happened most famously at New York City'sPolice Department, which for more than a decade has been spending