Congratulations to Peter Siegelman upon recent (okay, relatively recent) publication of his article Contributory Disparate Impacts in Employment Discrimation Law, which graced the November 2007 pages (515-68) of Volume 49 of the William and Mary Law Review. In this simple, straightforward and typically innovative piece, Peter suggests that employers be granted a new defense against employment discrimination suits based on disparate impact. Here's his idea. Suppose an employer imposes a job-related test upon all prospective job applicants. Let's say prospective receptionists are asked to field hypothetical phone calls and only those who can handle 5 per minute pass the test. Now let's say, for reasons that are unclear, men pass this test at a far lower rate than women. Under current law, a man denied a job as a receptionist can file suit against the employer alleging a disparate impact. The employer then must show that this test is statistically valid at predicting some aspect of job performance. If, instead, the phone in the office never rings that much, then the man will win the case. This sounds all well and good until Peter points out that the litigation costs of demonstrating that a job test is actually valid and related to performance can be very high. Asking employers to prove such things can impose a high cost on the economy. But, making the employer abandon the test seems overkill if it actually tests something related to the job. Finding the right balance in such cases may be difficult.
Here then is Peter's intervention. What if it turned out that men could improve their phone test results (i.e. pass the test and get 5 calls per minute) with a very little amount of practice. Just a few hours per week for a month and their results would be right up there with the women. Peter's position is that they should have to practice, and if they don't the employer should have a defense to the discrimination lawsuit. Of course, his real world cases where the tests involve physical endurance and the practice involves getting in shape are much more convincing. To make his case Peter takes us through statutory interpretation that goes like this. There are many unexplained words in the anti-discrimination laws. No one knows why they read as they do. It would be a good idea to give employers the kind of defense he proposes. One way to read the unexplained words is to create that defense. So the defense is grounded in law. Clearly he's having fun.
Needless to say, Peter has much stronger arguments, which are also stronger than arguments based on case law that vaguely hints that prospective employees should have some obligations too. (Dress better, speak English or go home). Indeed, Peter's argument is quite convincing as a first foray into this topic. Who can argue that if it's easy for employees to shape up, and shaping up actually seems connected to better job performance, why not impose the costs on them rather than forcing employers to prove statistical validity. Of course, there are counter arguments. Maybe the cost on prospective employees of preparing for three different tests as they seek three different jobs is simply too high. But as you would expect Peter carefully considers these arguments and suggests productive ways to think about the problem. All and all he offers a new lens on an old problem. This is the absolute hallmark of top flight work, which now graces the dean's bookshelf.
Peter also deserves congratulations for a second piece of which he is (or at least he should be) the proud co-author (with Gideon Parchomovsky and Steven Thel). This is "Of Equal Rights and Half Wrongs" that appears at 82 N.Y.U. L. Rev. 738 (2007). As you'll recall from his workshop, this piece tackles the age-old problem of the legal remedy when both sides have seemingly valid legal claims. The authors embrace the long rejected view that splitting the difference between the parties is actually the best bet and cite the recent case involving the Barry Bonds baseball dispute as a paradigmatic example. Regrettably, empty space, carefully reserved is the best the dean's bookshelf can claim for this scholarly gem, since Peter's co-atuhor Prof. Thel has bogarted all the reprints. Kudos are due nonetheless.