Disparate Impact and the Quota Debates: Law, Labor Market Sociology, and Equal Employment Policies

Abstract

Bringing sociological theory and research to bear on the “quota debates” dogging discussion of federal civil rights legislation in the early 1990s, this article highlights sociology's role in shaping employment law and shows how apparently technical legal arguments about allocating burdens of proof affect labor market resource allocation among the classes, races, and genders. Contrasting institutional-sociological with liberal-legal concepts of discrimination, the article shows why disparate impact theory has been the most sociological approach to Title VII enforcement. It also shows how disparate impact—a theory and method for establishing legally cognizable employment discrimination injurious to women and minorities—is, and is not, related to affirmative action—a policy encompassing a broad range of procedures intended to provide positive consideration to members of groups discriminated against in the past. Finally, a competing incentive framework is used to show that, although disparate impact creates some incentives for employers to adopt quota hiring, such incentives are counter-balanced by major incentives working against race- and gender-based quotas. Major counterincentives stem from disparate impact itself, from other aspects of equal employment law, and from organizational goals shaping business response to the legal environment.