By Steven M. Cahn
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Additional info for Affirmative Action and the University: A Philosophical Inquiry
5. 21. Probably the best summaries of Title VII law are Barbara Schlei and Paul Grossman, Employment Discrimination Law, 2d ed. : Bureau of National Affairs, 1989). 22. Griggs v. S. 424 (1971). 23. For example, see Texas Department of Cornmunity Affairs v. S. 248 (1981); Kunda v. 2d 532, 541 (3d Cir. 1980). An additional complication is posed when the employer has "mixed motives" for the decision-for example, when in a highly subjective professional context both biased and legitimate reasons played a role in employer decision making.
This approach leaves injustice to continue and is deeply problematic whenever the injustice is relatively serious. Another approach is to move more aggressively to outcome-directed corrective strategies such as target appointments percentages. The aggressive approach is preferable to doing nothing, because it at least brings the possibility of curtaining persistent injustice. As the data indicate, however, the problems of recruiting male African American faculty may differ significantly from the problems of recruiting women faculty.
This is the strongest argument to be made for the claim that it is discriminatory: a subtle kind of bias is shown by acquiescence in a practice that is not supported by good reasons, and that operates significantly to exclude members of historically disadvantaged groups. Employers who argue against this theory of disparate impact generally do not challenge the claim that it is llnjust to continue a practice with exclusionary consequences when tllere are no otherwise good reasons for doing so. Instead, they either argue that there are good reasons for the practice-such as that it yields more qualified applicantsor that they will be forced by the recog11ition of this kind of injustice into numerical quotas that will result in new injustices.