Affirmative Action in the Workplace - Living Together - The Bell Curve: Intelligence and Class Structure in American Life - Richard J. Herrnstein, Charles Murray

The Bell Curve: Intelligence and Class Structure in American Life - Richard J. Herrnstein, Charles Murray (1996)

Part IV. Living Together

Chapter 20. Affirmative Action in the Workplace

Employers want to hire the best workers; employment tests are one of the best and cheapest selection tools at their disposal. Since affirmative action began in the early 1960s, and especially since a landmark decision by the Supreme Court in 1971, employers have been tightly constrained in the use they may make of tests. The most common solution is for employers to use them but to hire enough protected minorities to protect themselves from prosecution and lawsuits under the job discrimination rules.

The rules that constrain employers were developed by Congress and the Supreme Court based on the assumptions that tests of general cognitive ability are not a good way of picking employees, that the best tests are ones that measure specific job skills, that tests are biased against blacks and other minorities, and that all groups have equal distributions of cognitive ability. These assumptions are empirically incorrect. Paradoxically, job hiring and promotion procedures that are truly fair and unbiased will produce the racial disparities that public policy tries to prevent.

Have the job discrimination regulations worked? The scholarly consensus is that they had some impact, on some kinds of jobs, in some settings, during the 1960s and into the 1970s, but have not had the decisive impact that is commonly asserted in political rhetoric. It also appears, however, that since the early 196Os blacks have been overrepresented in white collar and professional occupations relative to the number of candidates in the IQ range from which these jobs are usually filled, suggesting that the effects of affirmative action policy may be greater than usually thought.

The successes of affirmative action have been much more extensively studied than the costs. One of the most understudied areas of this topic is job performance. The scattered data suggest that aggressive affirmative action does produce large racial discrepancies in job performance in a given workplace. It is time that this important area be explored systematically.

In coming to grips with policy, a few hard truths have to be accepted. First, there are no good ways to implement current job discrimination law without incurring costs in economic efficiency and fairness to both employers and employees. Second, after controlling for IQ, it is hard to demonstrate that the United States still suffers from a major problem of racial discrimination in occupations and pay.

As we did for affirmative action in higher education, we present the case for returning to the original conception of affirmative action. This means scrapping the existing edifice of job discrimination law. We think the benefits to productivity and to fairness of ending the antidiscrimination laws are substantial. But our larger reason is that this nation does not have the option of ethnic balkanization.

Affirmative action in the workplace arose at the same time that it did in the universities but with important differences. One difference is that in the workplace, the government and the courts have been the main activists, forcing businesses into a variety of involuntary practices, whereas universities and colleges largely create their own policies regarding student selection. Affirmative action policies in the workplace have been more a matter of evolution than of coherent policymaking. (Appendix 7 traces this evolution.) Universities and colleges occasionally run afoul of affirmative action laws in their hiring and promotion decisions, but in student admissions they are usually far ahead of what has been legally required of them.

A second important difference is that almost everyone has a personal stake, and can see what is going on, in the workplace, unlike on campus. In colleges, the applicant who does not get in because he was displaced by an affirmative action admission never knows exactly why he was rejected. In many workplaces, individuals can identify others who are hired, fired, and promoted under the aegis of affirmative action, and they tend to have strong opinions about the merits of each case. In many workplaces, affirmative action decisions regarding a few people can affect the daily life of tens or hundreds of people who work with them and under them. College and university admission decisions have less obvious immediate effects. These may be some of the reasons that few, if any, points of friction in American society have been rubbed so raw as where affirmative action operates in the workplace. The topic inflames relations between white elites (who generally favor the policies) and white workers (many of whom feel victimized by them), between ethnic groups, between the sexes, and between many citizens and their government.

The chapter is organized around several factual questions regarding affirmative action in the workplace. We start with the facts because they are pivotal to the arguments about affirmative action yet are often overlooked or misconstrued. First, what are America’s affirmative action policies? Second, do they make sense, given the relevant data? Third, what difference have they made? After reviewing the data on these issues, we turn to some broader questions that the facts raise but cannot altogether resolve. How should we think about the economic costs of affirmative action in the workplace? Assuming that just about everyone wants employment to be fair, what should “fairness” mean in the labor market?

Throughout, we concentrate on the situation regarding blacks. Affirmative action has expanded to embrace many other groups, but this policy came about because of an urgently felt national desire to redress the plight of blacks, and the focal point of tension, intellectual and social, has been affirmative action for blacks ever since. Many of the points we make about that story apply with modifications to other groups as well. Our policy recommendations also apply generally.


People apply for jobs. The employer hires some and not others. Later the employer promotes some and not others. An employer who appears to have based hiring or promotion decisions on the person’s being white (or one of the other outlawed reasons) is in violation of the law. A pure heart and good faith are not enough. If a rejected applicant or an unpromoted employee brings a complaint, an employer must be able to prove that the hiring and promotion processes meet legal definitions of fairness.

For some positions, employers may post job requirements and demonstrate that the hired or promoted employees had the best qualifications. But many jobs do not lend themselves to such case-by-case selection. In these cases, how does the employer demonstrate that the chosen employees have been selected without illegal discrimination? The obvious answer (or so it seemed in the beginning) is to use an objective job test and hire applicants with the highest scores. Testing has therefore been at the center of the history of employment discrimination law, as it has played out from the Civil Rights Act of 1964 to the Civil Rights Act of 1991. Here are some features of the prevailing situation facing employers, with variations and an interlude described in the appendix, since the Supreme Court’s landmark Griggs v. Duke Power Co. decision in 1971:

If an employer uses a test in the employment process and the results ofthat test lead to different results for different protected groups (mainly blacks, Latinos, and women) that employer faces the prospect of lawsuits, fines, and damages that could cost the company millions—perhaps tens of millions—of dollars. Employers can protect themselves in three ways.

First, they may decline to use tests. Nevertheless, they will still be vulnerable if their alternative hiring process has disparate impact (the legal phrase) on the hiring of different groups.

Second, they can try to construct a test that has an urgent economic justification and a manifest, direct relationship with the skills required by the job. A general ability test is always unacceptable. Usually off-the-shelf tests of any kind will also be found unacceptable until they are validated for the particular job in question

Third, an employer may meet the 80 percent rule. Created as part of federal guidelines issued in 1978, the 80 percent rule says in effect that people in the protected groups have to be hired or promoted at 80 percent or more of the rate enjoyed by the group with the highest rate of success in being hired or promoted. Here is how it works in practice: Suppose that the Acme Corporation uses a test for all its job applicants. Let us say that 225 white males apply and 90 are hired. This hiring rate of 40 percent is the benchmark against which the hiring of other groups is measured. All other groups must be hired at a rate no lower than 80 percent of the 40 percent hiring rate of white males, which comes to 32 percent. If 150 white women apply and 50 are hired—33 percent—Acme meets the hiring rate for women. Suppose that 100 Latinos apply and 25 are hired. Now Acme is vulnerable to discrimination suits by the rejected Latino applicants because its hiring rate for Latinos is 25 percent, not 32 percent. It should hire at least seven more Latinos, bringing the Latino percentage up to the needed 32.1

Note that we have said nothing about how the test was used or even what the comparative scores were. With the 80 percent rule, those considerations are irrelevant. It makes no difference if the rejected male applicants had scores that were twice those of the successful women applicants: All that matters is the bottom line: the 80 percent criterion. Less than 80 percent, and Acme is in trouble; more than 80 percent, and the government will probably leave Acme alone. Just “probably,” however. The 80 percent rule is a guideline, not a law, and there is no guarantee that meeting it will head off litigation.2


Federal affirmative action policy toward employment testing is laden with assumptions not about fairness but about what is true as a factual matter. Specifically, Congress and the Supreme Court developed federal job discrimination policy on the assumptions that (1) tests of general cognitive ability are not a good way of picking employees, (2) the best tests are ones that measure specific job skills, (3) tests are biased against blacks and other minorities, and (4) all groups have equal distributions of cognitive ability.

To varying degrees, these assumptions were defensible when they were first voiced in the 1960s. Ethnic differences in test scores were known to exist, but many experts at that time still thought they reflected test bias, or that the differences would melt away as educational opportunity for minorities improved. The predictive validity of tests for job performance was poorly understood. But however understandable these views were in the 1960s, public policy over the next twenty years suffered from an increasingly severe case of psychometric lag. To summarize the by-now solidly established empirical situation described in Chapters 3 and 13:

· Cognitive ability has an economically important relationship to job productivity that applies across the range of jobs and the range of abilities.

· Cognitive ability tests are often the single most predictive method of picking employees—more predictive than grades, education, or a job interview.

· The predictive power of tests derives almost completely from their measure of general cognitive ability, not measures of job-specific skills.

· Cognitive ability tests either are not biased against blacks as predictors of job performance, or in some cases are biased in favor of blacks.

· Different ethnic groups have substantially different distributions of cognitive ability that are not explainable by cultural bias and not easily altered by remedial steps.

What is true regarding jobs, IQ, and group differences in cognitive ability is the opposite of what the courts, the Congress, and many others have supposed the truth to be. The dilemma is that job hiring and promotion procedures that are truly fair and unbiased in the sense in which everyone used those terms in 1964 will produce the ethnic and group disparities that public policy so vigorously tries to prevent. The most valid hiring tests may have the largest disparate impact. As a first step in coming to terms with affirmative action—however one balances the many other factors that make affirmative action desirable or undesirable—the government should scrap the invalid scientific assumptions that undergird policy and express policy in terms that are empirically defensible.

This step need not mean scrapping affirmative action. It means only discarding rhetoric about testing and affirmative action (“tests aren’t valid for minorities,” “tests of general ability don’t predict anything worth knowing about job performance”) that are not true and instead defending affirmative action on whatever grounds can be authentically defended. Some progress has been made on this front. The Hartigan Committee’s report on the General Aptitude Test Battery3 was a step in the right direction, for example, acknowledging many of the key facts about tests while continuing to defend affirmative action (though the basis for their defense is in itself open to technical debate). A few other proponents of strong affirmative action are becoming more forthright about what they are really promoting—not just equal opportunity but equal employment outcomes despite unequal job performance.4 But these are exceptions to a general public discussion of affirmative action that relies on inaccurate and to some degree dishonest representations of the state of knowledge about tests, employment, and competition among protected and unprotected groups.


The scholarly debate over the effects of antidiscrimination legislation in the workplace has been lively, and this is a good time to summarize where that debate stands. The answers are complicated, but scholars have done much better than the public commentators on this score.

Version I: Ignoring Cognitive Ability

According to official statistics, wages for blacks have risen since the 1960s and more blacks have entered prestigious occupations. Most people take for granted that these changes have happened to some important degree because of antidiscrimination laws. But what may seem obvious at first glance is not obvious upon further inspection. “Two decades of research have failed to produce professional consensus on the contribution of federal government civil rights activity to the economic progress of black Americans,” wrote economists James Heckman and Brook Payner in 1989,5 and the situation has clarified only marginally since then. The nature of the problem facing the analysts is illustrated by the figure below for two categories of white-collar jobs that affirmative action was supposed to open up for blacks.6 The vertical lines demarcate three landmarks in antidiscrimination law: the passage of the Civil Rights Act of 1964 that outlawed job discrimination, the Griggs decision that put increased pressure on employers to hire the right number of minorities even if they were using consistent hiring practices, and adoption of the Uniform Guidelines on Employee Selection Procedures that established the 80 percent guideline (all described further in Appendix 7).

The uncertain effects of affirmative action in the workplace


Sources: Bureau of Labor Statistics 1983, 1989; U.S. Department of Labor 1991. Figures prior to 1973, reported for “blacks and others,” are adjusted pro-rata to the black-only population.

To see why the analysts have a complicated task, consider clerical jobs (the gray line in the figure). The story here seems obvious: From 1959 until the passage of the Civil Rights Act, improvement was slow. Immediately after the act came a sudden increase in the percentage of employed blacks who held clerical jobs; thereafter the percentage continued rising but at a slower rate. Furthermore, the gap between black and white percentages for these jobs (not shown in this graph) also closed—again, faster for a while after 1964 than before. We might conclude that the Civil Rights Act itself was effective but that the two subsequent landmarks in affirmative action policy were not, at least for these jobs.

Now follow the black line in the above figure, representing professional and technical jobs. Its slope before 1964 was certainly no lower than its slope after; if anything, the slope decreased after the act. Blacks were making progress before the act; afterward they weren’t progressing any faster in their movement into these high-status, high-paying occupations. Trendlines for other job categories, not shown in the graph, that were supposed to open up for blacks—managerial and administrative, sales, and craft workers—similarly fail to register much of a gain from the new policies. The clerical job category is the unusual case; it is the only job category that shows a visible change in slope after 1964. If evidence of success is to be found for affirmative action, it must be disentangled from a web of other factors that seem to have been influencing the employment of blacks.7

This is not to say that antidiscrimination law had no effect, only that the effects on hiring and promotion are not simply demonstrated. Our understanding of the impact of affirmative action policies, drawn from a number of technical assessments that have not taken cognitive ability into account, may be summarized as follows:8

· Affirmative action policies had the expected effect in public bureaucracies. Police and firefighters are the most conspicuous examples, but affirmative action also has demonstrably increased the proportion of minorities throughout government bureaucracies, from the federal level on down.9 At the federal level, the strongest effects are at the clerical level and below. In cities with large minority populations, the effects are spread across a broader range of government positions, with de facto quotas up to the highest levels.

· Among private companies, affirmative action has had some effects, particularly in the South and among companies that do business with the federal government. Some unknown fraction of the increase in black employment by companies with government contracts is balanced off by compensating declines in companies without them.

· In private industry in the South (where much of the most demonstrable progress in private industry has been made), a complicated mix of forces seems to have been at work: partly the Civil Rights Act of 1964 and its aftermath, partly the repeal of Jim Crow laws restricting job entry into certain industries, partly a broader breakdown of racial segregation, legal and otherwise.10

· Whatever effects affirmative action may have had during the 1960s and 1970s, they had become too small to measure by the 1980s and will probably continue to be small in the future, largely for economic reasons.

· The behavior of employers has certainly been affected by job discrimination law. Every large company must maintain a bureaucracy to monitor compliance with federal regulations and to defend against (or, commonly, settle out of court) lawsuits alleging discrimination. The amounts of time, money, and resources devoted to compliance are substantial.

In short, federal antidiscrimination efforts writ large—embracing all the disparate events following on the rise of the civil rights movement in the mid-1950s—probably had a significant impact on black economic progress. Job discrimination law in particular probably had a smaller but significant effect for some blacks in some settings. No serious student of the topic argues that job discrimination law had the decisive impact that is commonly attributed to it in political rhetoric.

Version II: When Cognitive Ability Is Taken into Account

We now pose a question of affirmative action that has not been asked in the literature we just reviewed: How do the observed differences between blacks and whites in occupations and wages compare to those that would be predicted from the observed black-white difference in the distribution of cognitive ability? We presented the summary answer as of the end of the 1980s in Chapter 14, when we showed that, after controlling for IQ, a higher proportion of blacks than whites in the NLSY are in the professions and that wages for blacks and whites are essentially equal. Neither education nor socioeconomic background, accounted as well as IQ for the differences in jobs or wages between blacks and whites.

These findings may bear on the question of the impact of affirmative action in the workplace. To see why, let us examine the mean IQs for NLSY members in different job categories as of 1990, as shown in the table below. In all job categories, from highest to lowest in skill, employers are hiring blacks who differ from whites in those jobs by one or more standard deviations in IQ. Part of the reason may be that employers hire blacks and whites of differing cognitive ability because of the pressures brought on them by government policies regarding the representation of minority groups. Without such pressures and in a raceblind labor market, blacks and whites should be equal in those traits that best predict performance on the job. From the kinds of data reviewed in Chapter 3, we know that cognitive ability is such a trait—the more so, the greater the skills are involved in the job. Consequently, we should expect the IQ gap between whites and blacks to be the narrowest for high-skill jobs if hiring is race blind.

The Black-White IQ Difference by Job Category, 1990

Job Category

Mean White IQ

Black-White Difference, in Standard Deviations
















Protective services



Other service jobs






Low-skill labor



We may draw this conclusion without knowing whether an employer administers cognitive tests to job candidates or even thinks consciously about cognitive ability when hiring. The relationship of cognitive ability to job productivity exists independent of the existence of test scores, and all hiring practices that succeed in choosing productive workers will tend to select employees with only small group differences in intelligence for occupations in which IQ is most important. The table above shows no such narrowing for the cognitively demanding jobs. If anything the gap widens toward the top of the table.

The most plausible explanation for the large gap toward the top of the table is that employers are using dual standards for black and white job applicants. Moreover, we venture the hypothesis that employers are using dual standards at least in part because someone or something (the government or an aversion to harmful publicity) is making them do so—hence our conclusion that affirmative action is probably having a more substantial impact on hiring practices than the standard analyses indicate.

This also leads to a reinterpretation of the graph on page 485 for clerical and professional and technical jobs. We pointed out that the trendlines for black employees did not get steeper, with the single exception of clerical jobs, after the Civil Rights Act was passed. Now we are suggesting an alternative perspective: The fact that the trendlines continued to go up as long as they did is in itself evidence of the impact of affirmative action. Without affirmative action, the trendlines would have leveled off sooner, perhaps at the point at which blacks and whites of equal IQ had equal chances of employment in high-status jobs. In the next figure, we adjust the hiring proportions for the known difference in IQ between whites and blacks.11 For professional and technical jobs, the assumption is that employees are normally drawn from people with IQs of 98 or higher; for clerical jobs, the assumption is that they are drawn from within the range of 86 to 123.12 The results are shown in the figure below.

A revised view of equal employment opportunity after correcting for ethnic differences in the IQ distributions


Source: Bureau of Labor Statistics 1983, 1989; U.S. Department of Labor 1991.
a The ratio represents blacks employed in a given occupational grouping expressed as a percentage of eligible blacks, divided by the whites employed in the same occupational grouping expressed as a percentage of eligible whites. The number of eligibles is determined by the size of the working-age population in that race who fall within the IQ range for that occupation, as calculated from a table of normal probabilities. The assumptions for computing the ratio are: (1) the IQ range for professional and technical jobs is 98 and higher; (2) the IQ range for clerical jobs is 86-123; (3) IQ is normally distributed with a mean of 85 for blacks and 1OO for nonblacks, with a standard deviation of 15 for both groups.

What “should” the lines look like? If the assumptions in drawing them were accurate, then both lines should have risen to 1 (to signify that blacks and whites in the same IQ range are hired at the same rate) after the antidiscrimination laws were passed and then hovered near 1 thereafter. Anything above 1.0 signifies a higher likelihood for blacks of being hired, once IQ is held constant; below 1.0, the opposite is true. The proportion of blacks in professional and technical jobs rose above 1 in the early 1960s, flattened after the Civil Rights Act of 1964, took another steep jump after Griggs, and then settled into a gradual rise through the late 1980s. For clerical jobs, progress after 1964 led to parity in the late 1960s. The relative proportion of blacks in clerical jobs then continued to increase at a slower but more nearly linear pace since then. In both categories of employment, blacks have been hired at higher rates than whites of equal IQ since the late 1960s, and the upward trend lasted at least until the late 1980s.

Since these job categories do not have precisely defined IQ ranges, it may be asked what would happen if the assumptions were changed. Some of the alternatives we tried are described in the note to this paragraph. The short answer is that the picture stays essentially the same within any reasonable range of assumptions. The overall conclusion is that blacks have for some years had more people working in both clerical jobs and professional and technical jobs than would ordinarily be expected, given the IQ range from which those jobs are usually filled.13

The figure above uses broad guidelines about the IQ range from which certain jobs are held and applies them to national data about occupations. For a narrower focus, the NLSY supplies data about specific individuals, their occupations, and IQs.14 In 1990, using the same definition of “professional and technical occupations,” and after controlling for IQ (set at 113, the mean IQ for whites in such occupations), the proportion of blacks in the NLSY employed in professional and technical occupations was 1.5 times the proportion for whites, compared to the ratio of 1.7 shown for 1990 in the graph. For clerical jobs, after controlling for age and IQ (with IQ set at 103, the mean value for whites holding clerical jobs), a black in the NLSY was 1.9 times more likely than a white to be employed in a clerical job, compared to the figure of 1.6 for 1990 as shown in the graph.15 The conclusion drawn from national statistics is thus confirmed by the individual data in the NLSY.

Several points may be drawn from this exercise. First, it highlights the reality and magnitude of the discrimination suffered by blacks prior to the civil rights movement. As recently as 1959, the employment of blacks in clerical and professional and technical jobs was only half the proportion that would have been expected from recruitment to those jobs based on IQ alone. Decennial census data (not to mention living memory) tell us that this underrepresentation was still more severe in the 1950s and 1940s.16 There was a clear and large racial deficit to be made up.

Second, the exercise shows how rapidly changes were made in the 1960s and early 1970s. If cognitive ability is taken into account, the underrepresentation of blacks in professional and technical jobs was gone by 1964, prior to the Civil Rights Act. This closing of the occupational gap between blacks and whites, obscured by trendlines that do not compensate for IQ differences, argues that something besides antidiscrimination legislation was already afoot in America, making the job market less stacked against blacks.

Third, by the end of the 1960s, the job market had pressed beyond the point of parity for blacks and whites, again after cognitive ability is taken into account. One might argue that this merely proves that IQ is not so important for job productivity after all—except that a large literature, already summarized, demonstrates beyond much doubt that IQ is as predictive of job performance for blacks as for whites.17 We can only surmise that the reason for attaining such high levels of black representation, particularly in the occupations that most strongly correlate with IQ, includes the impact of affirmative action policies. To that extent, if these affirmative action policies were changed, black employment in these occupations would fall. Would this be a return to unfairness? We will return to this hard question after considering the costs of affirmative action for job performance.


Inasmuch as cognitive ability is related to job performance and as minority workers are entering professions with lower ability distributions than whites, is there evidence of lower average performance for minority workers than for whites? Of all the many kinds of double-speak associated with affirmative action, this question points to one of the most egregious. Private complaints about the incompetent affirmative-action hiree are much more common than scholarly examination of the issue. We may nonetheless present several cases bearing on job performance, all telling similar stories for different occupations, using different kinds of data.

Teacher Competency Examinations

The nationwide enthusiasm for teacher competency examinations in the 1980s resulted in teacher testing programs in virtually all states by the end of the decade.18 These competency tests are seldom job performance tests as such, but rather a test of basic knowledge of reading, writing, and mathematics. Even so, teachers who score higher on the tests have greater success with their students.19 The competency exams seem to have had some generally beneficial effects, though the cutoffs are low by the usual standards of what we expect teachers to know.20 The pass rates for whites typically exceed 80 percent and sometimes 90 percent. Whatever your profession may be, think about the meaning of a test that would “pass” aspirants to the profession who perform in the bottom 20 percent. But having so low a cutoff for whites sharpens the evidence of the disparity in black and white qualifications, as shown in the following table.

Typical Results of State Teacher Competency Examinations

Pass Rate



Implied Difference in SDsa

Sources: H. Collins, “Minority groups are still lagging on teacher exam,” Philadelphia Inquirer, Aug. 5, 1989, p. B1; T. Spofford, “Teacher test called biased,” Albany Times Union, Nov. 20, 1987, p. A1; B. Davila, “State’s teacher test biased against minorities, lawsuit contends,” Sacramento Bee, Sept. 24, 1992, p. B8; “Minority teachers,” Richmond News Leader, May 16, 1989, p. A14.

aAssumes a normal distribution and equal standard deviations in both groups.

California, 1983-1991




Pennsylvania, 1989




New York, 1987




Georgia, 1978-1986




These are not cognitive ability scores or scores that are being used to select people for further education but competency scores achieved by people who are heading into the nation’s classrooms. According to the institutions that have graduated these applicants for teacher certification (in some cases, the scores are for teachers already on the job), all of them have met the requirements for a college degree, and they presumably can read, write, and do basic math. The scores are on tests that make no pretense to seek excellence but to weed out the most obviously unsuited.21 With differences ranging upwards of 1 standard deviation, the inescapable conclusion is that a large gap separates black and white teachers in basic skills.22

The Compensating Skills Fallacy

One of the most common arguments about the current practice of affirmative action might be called the compensating skills fallacy. It is commonly applied to any profession under discussion, but teachers provide an especially good example. The argument goes like this:

There are many skills and qualities that go into being a good teacher besides test scores. The ability to inspire confidence, to create an eagerness to learn, to listen to children are all part of the wide repertoire of skills that go into being a good teacher that have nothing to do with the traits measured by a cognitive ability or academic skills test.

The statement itself is correct. Most professions involve a number of important nonintellectual attributes. The fallacy lies in assuming that people who have lower cognitive test scores will, on average, be better endowed in these other areas than people with higher scores.

Suppose that the teacher competency exams consisted of several parts, each of which measured one of these nonintellectual skills. It would be possible to defend hiring teachers with marginal grades on the intellectual skills if these teachers were hired from the top of the list on the tests of the other qualities. But the way affirmative action programs actually work, these other qualities are not tested or compared. The minority candidate with the best score on the test of intellectual qualities is selected. As for the other qualities, not measured by the test, there is no reason to assume that they are any higher than average.23

A Journalst’s Account of the Washington, D.C., Police Force

Because affirmative action has been practiced most aggressively in public employment—police, firefighters, social welfare agencies, departments of motor vehicles, and the like—they are logical places to look if indeed job performance has been compromised.24 The Washington, D.C., Police Department is a case in point, as described by journalist Tucker Carlson.25

In the mid-1970s, the Washington, D.C., Police Department installed a residency requirement for police. Washington’s white population is densely concentrated among white-collar and professional groups, with no significant white working-class neighborhoods. The residency requirement thereby severely restricted the pool of potential white applicants. By 1982, 40 percent of the candidates who took the police admissions test failed it, and the department was having a hard time filling positions. A new test was introduced in 1985, normed to favor minority applicants. Standards in the police academy were lowered to the point at which not one student flunked out of the training course in 1983 (despite the lower cognitive ability of the candidates being admitted). In 1988, the academy abolished its final comprehensive pencil-and-paper examination after 40 percent of graduating recruits failed it. The former head of the Fraternal Order of Police and a veteran of twenty-two years on the force reported that, at about that time, he began hearing “about people at the academy who could not read or write.”26 A former academy instructor says that “I saw people who were practically illiterate. I’ve seen people diagnosed as borderline retarded graduate from the police academy.”27

This degradation of intellectual requirements translates into police performance on the street. For example, the paperwork that follows an arrest has been a bane of police everywhere for many years, but when police can do the work, it is mainly an inconvenience, not a barrier. An officer who cannot do the paperwork or who finds that it pushes the limits of his abilities may forgo making arrests in marginal cases. The arrests that are made are often botched. Between 1986 and 1990, about a third of all the murder cases brought to the U.S. attorney’s office in the District were dismissed, historically an unusually high rate, often because the prosecutors were unable to make sense of the arrest reports.

The basic features of Carlson’s account are confirmed by a variety of other journalistic accounts, most conspicuously a 1993 investigative series by the Washington Post on police performance.28 Two facts about the Washington Police Department seem clear: Recruitment and training standards deteriorated markedly in recent decades, and the performance of the department, once considered a national model, has also deteriorated badly.

Washington is not unique. In Miami in 1985, the police department was rocked by the discovery and seizure of hundreds of pounds of cocaine hidden by police officers working in cahoots with smugglers. We have the results of the intense self-examination that resulted. The main conclusion was that this crime, as well as the many others that were straining community-police relations at the time, could be traced in part to the relaxation of hiring standards mandated by affirmative action regulations. Almost 90 percent of the officers who were dismissed or suspended within a few years of the initiation of aggressive affirmative action policies at the beginning of the 1980s were officers with marginal qualifications, hired because of those policies.29

Such stories are common among people who have worked in, or been a client of, organizations that practice aggressive affirmative action, and the link they ascribe to affirmative action is usually explicit and emphatic.30 There is a great deal of smoke emanating from such accounts. We urge that people start checking out whether there is any fire.

A Scholarly Analysis of an Affirmative Action Program for Blue-Collar Jobs

Economist Eugene Silberberg systematically compared the experience of blacks who were admitted to craft unions (electricians, plumbers, and pipefitters) in Seattle at the end of the 1970s under a court order and whites who were admitted under ordinary selection procedures at the same time.31 Silberberg assembled data on performance in apprentice school, on-the-job ratings, and educational background, then was given access to a variety of job performance measures over an eighteen-month follow-up period: hours worked, number of employees who quit, jobs turned down, failures to respond to a dispatch, and being listed by an employer as not eligible for rehire. The table below shows the combined differences, expressed in standard deviations, for the pipefitters and plumbers.

Job Performance of Black Affirmative Action Plumbers and Pipefitters Compared to White Regular Hirees

Black-White Difference in SDs

Source: Silberberg 1985, Table 2.

Note: The table combines data on apprentices and journeyman for both crafts using weighted standard deviations.

Job performance measures

Quits or no rehire


Termination for cause


Nonresponse to job call


Hours worked


IQ-related measures

GPA in apprentice school


GPA in on-the-job training


Comparing the blacks admitted under the court order with whites admitted under the ordinary procedures at the same time, the blacks quit at more than six times the rate for whites, were terminated for cause at more than three times the rate for whites, and did not respond to a job dispatch at more than six times the rate for whites. Similar results were obtained for the electricians. The results track closely with the larger literature on IQ and job productivity. The differences in the job performance measures are what might be expected from the discussion in Chapter 3. Furthermore, the size of the difference in job performance is economically important. Silberberg discusses the possibility that the differences are themselves a result of bias among the dispatchers and supervisors. Given the procedures for assigning jobs in the Seattle unions, he concludes that it is extremely difficult to explain away the differences in such terms.32

Having reviewed the less than plentiful data at hand about ethnic differences in job performance, we are reminded of a passage by Andrew Hacker, one of the stoutly “pro” voices in the affirmative action debate:

A favorite question of affirmative action’s opponents is whether you would want to be operated on by a surgeon who had been admitted to medical school under a racial dispensation. As it happens, few posing this kind of question have any knowledge of what makes for surgical skill. In fact, there are no known correlations between good grades or high scores and subsequent success with a scalpel. If we mean to debate this subject seriously, we should rely on hard data rather than scare tactics.33

We cannot agree with Hacker’s characterization of the state of knowledge, but we enthusiastically subscribe to his concluding sentence. By all means, let people on all sides of this issue assemble hard data. The purpose of the foregoing examples is to make two points: (1) the scattered evidence about job performance and affirmative action—indirect and direct, soft and hard—suggests large and pervasive effects, and (2) there is no excuse for not having many more hard-data studies of the type that Silberberg conducted. Job performance is important, it is measurable, and the issue of affirmative action and its effects on job performance has been on many people’s minds for years. Many corporations routinely conduct studies of job performance and have databases that could be reanalyzed to assess the effects of affirmative action on job performance.

The request we make of Hacker and other proponents of affirmative action is that they join us in encouraging such work. Confident that group differences in job performance are not an important problem, they can try to prove their case. Our own conclusion is that they cannot do so. If this is so, the debate about affirmative action must shift to another level: How much degradation of job performance is acceptable in pursuit of the other goals of affirmative action? And that in turn brings us to first questions. What, after all, is the nation trying to accomplish with affirmative action in the workplace? What are the right measures of success?


In thinking about affirmative action in the workplace, more than psychometric realities or efficiency in the workplace must be considered. To avoid misunderstanding, this is a good time to lay out our perspective on these other matters.

· As of the 1950s, minorities, especially blacks, in many parts of the country were systematically and unjustly excluded from entering skilled and professional occupations of all kinds.

· At least since the 1950s, changes in white attitudes, as expressed in the civil rights movement and in myriad other events in race relations, the removal of Jim Crow restrictions in the South, and affirmative action requirements opened up opportunities for minorities. Progress was made.

· In the 1990s, racial hostility continues to be a significant problem in American life.

· Affirmative action has an internally consistent rationale even if it is at odds with the maximum efficiency in hiring productive workers.

This last remark calls for some elaboration. Suppose, for the sake of argument, that we are sure that a history of unfair discrimination has handicapped some people so that they fare less well in the job market than they otherwise would. Their handicaps may handicap their descendants, so that past unfairness is propagated indefinitely into the future, unless we do something about it. A properly constructed affirmative action policy may then be temporarily less efficient but more efficient in the long run. If it achieves long-run efficiency by breaking the cycle of past discrimination, it is arguably fair. And even if the long run is indefinitely far off, many people are willing to pay some price in lost productivity for a large enough gain in group equality.

Or suppose that we knew that the inequality in employment that we observe arises for reasons we consider inherently unfair. Perhaps blacks are, for example, not being hired to be shop clerks in neighborhoods because the customers (or the other workers) are bigoted.34 It may be efficient to hire fewer clerks who will be discriminated against, but it is not fair. Many people would be willing, again, to lose some efficiency in return for greater equality.

In short, we sympathize with some of the imaginable reasons for affirmative action in the workplace and are under no illusions about the ways in which perceptions of racial differences still affect employers’ hiring decisions. But affirmative action does not mean just wanting good things. It means specific and often substantial constraints on the employer’s ability to make use of the most qualified people. What should we make of such policies as of the 1990s?

Trying to Reconcile Ethnic Equity and Competitive Fairness

It is possible for an advocate of current affirmative action policies to concede all the factual points we have made in this discussion and still be in favor of continuing and even stronger affirmative action policies. For such advocates, it makes no difference if the tests are reliable and valid predictors of job performance. If a disadvantaged group performs at a lower level, to these advocates, it is self-evidently society’s fault, and government must take whatever steps are necessary to bring the disadvantaged group up to the level of other groups, ensuring equal employment and income in the meantime. Sometimes this argument is couched specifically in terms of the black experience in the United States, sometimes as part of a broader argument for an egalitarian agenda.35

Our dispute with the egalitarian position has to be carried out on ethical and philosophical grounds, for there is nothing much to argue about in the facts. Briefly, we differ with the contemporary advocates of continued quotalike hiring requirements on two counts.

First, we adhere to the 1964 view of what constitutes fairness, exemplified by Hubert Humphrey, who, in fighting for passage of the Civil Rights Act of 1964, declared that it “does not limit the employer’s freedom to hire, fire, promote, or demote for any reason—or for no reasons—so long as his action is not based on race,” and then volunteered to eat the bill in public if he were wrong about what the new law would do.36 Like the senator, we reject equality of outcome as an appropriate goal. Equality of opportunity is the test most consistent with the vision of the Congress that enacted the law in 1964, and for that matter with the vision that animated the Constitution. The appropriate goal is a job market in which people are not favored or held back simply because of their race. Nothing in nature or knowledge, however, says that all groups should be equally successful in every walk of life. This may be “unfair” in the same sense that life is unfair, but it need not mean that human beings 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 the number of white players. No one thinks this is unjust. When professional tennis equalized the purses for male and women champions, it did not also require the men and women to play against other, because everyone recognized that all the top men would almost always beat all of the top women. If men and women players were ranked in a single list, would there be “too many” males among the top 100 tennis players in 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 among groups.37 If a disproportion is fair, then “correcting” it—making it proportional—may produce unfairness along with equal representation. We believe that is what has happened in the case of current forms of affirmative action. People who bring equal qualifications to a job should have an equal shot at being hired, and affirmative action regulations, originally intended to promote precisely that goal, now impede it.

Second, the debate will be healthier if those who want private businesses to support social objectives openly acknowledge that such support does in fact entail costs in efficiency and productivity, hence the benefits that flow from greater efficiency and higher productivity—including a stronger economy for American society as a whole.38 Nor are the costs in productivity unique to private businesses. When a police department hires people who become less effective police officers than those it could have hired, the department loses some of its capability to provide law enforcement. Affirmative action can cost something in government services every bit as much as in the productivity of a private business.

We do not require equal outcomes, but we do want fair treatment. What policy alternatives might be employed to bring about this state of affairs in hiring and promotion? Before exploring four alternatives, let us say clearly that the worst alternative, the one we do not discuss further, is what we are now doing: not raising the question at all and proceeding as if there are easy and costless ways to achieving fairness.

Alternative I: Creating Tests That Are Legal Under the Current Requirements

In theory, employers could construct job-specific tests that meet the Supreme Court’s (and now the Congress’s) definition of fairness. It would be expensive, and the tests would seldom (if ever) be more predictive than a general test of cognitive ability. But it is feasible. The difficulty is that predictiveness comes primarily from the tests’ measure of g. Therefore, although they cannot be faulted under the other legal requirements, they will nonetheless be thrown out because of disparate impact. This is what has happened most famously at New York City’s Police Department, which for more than a decade has been spending large amounts of money trying to create a sergeant’s examination. Each successive version has met strict standards of job specificity and freedom from demonstrable cultural bias, but large ethnic disparities have persisted.39 The disparities themselves invalidate the test, and a new version must be prepared. The police department has even used a videobased test, on grounds that any form of paper-and-pencil test must necessarily discriminate against minorities.

The case of the New York Police Department is one example of many.40 In practice, no test that produces disparate results has been able to withstand challenge. The lesson of the last two decades is that ethnic bias in a job test need not be proved. It need only be alleged. This has been most consistently the case for public employment—police, firefighters, sanitation workers, teachers, administrative staff—where political constituencies can most easily bring pressure to bear.

Alternative II : Choosing Among Applicants with Equal Education

Ordinarily a fair way to ease the existing affirmative action requirement would be to permit employers to narrow the pool of qualified applicants by using education as a screen. Thus, for example, the 80 percent rule (see the definition on page 482) could be calculated on the basis of applicants who met a minimum educational level, not all applicants. But affirmative action at the university level (Chapter 19) prevents this solution from working, because the same degree may not have the same meaning for blacks, Latinos, and whites in terms of cognitive ability. We showed this for the bachelor’s degree in the preceding chapter. But employers who try to make finer discriminations are no better off. In the NLSY, the black-white differences for every educational level, from high school diploma to Ph.D, are large, with the smallest being a difference of 1.2 standard deviations.41

Nor does it help to differentiate by major area of study. In the NLSY, a black and a white with a bachelor’s degree in engineering, math, or a hard science—majors that would apparently be least susceptible to double standards—were nonetheless separated by 1.1 standard deviations in IQ. Differences for other common majors (behavioral and social sciences, fine arts, education, or business) ranged from 1.4 to 1.6 standard deviations. For Latinos, the gap was smallest for engineering, math, or a hard science (.7 standard deviation) and ranged from .9 to 1.3 standard deviations for the others.

The educational credential used to be an effective way for a person from a deprived background to stand on an equal footing with other job applicants. It is still so treated that way in political rhetoric. The reality facing employers is that, given the aggressive affirmative action that universities have employed over the last three decades, educational credentials can no longer be used to compare the intellectual qualifications of black, Latino, and white job candidates.

Alternative III: Race Norming

An employer who hires large numbers of people cannot very well get along without using a test, but at the same time probably cannot devise a test that will pass muster with the government. So it will have to test applicants knowing that the test will produce unacceptably large group differences between whites and blacks, then comply with the 80 percent rule by hiring additional applicants from the protected minorities.

The simplest way to do this is to employ a pass-fail cutoff. Everyone above the cutoff is deemed qualified for the job, and then the employer uses other methods to choose among the candidates, making sure that the end result meets the 80 percent rule. This is a common solution and requires only that the cutoff be low enough that a sufficient number of protected candidates get into the final group of candidates.42 But the pass-fail cutoff throws away a great deal of valuable information. Suppose that after complying with the 80 percent rule, the employer ends up with six new white employees out of twenty whites who applied and two out of seven black applicants. Why just take any six whites who scored above the cutoff? Why not instead take the whites with the top six scores? Similarly, why not take the top-scoring two blacks?

This is called top-down hiring. If the test has high validity, if the group differences are large, and if there are many applicants, it is much more efficient than a cutoff.43 But there is a difficulty with this method. By deciding in advance on the number of whites and blacks who will be hired and then picking the top-scoring candidates, the employer is using quotas, which is illegal (even before the 1991 Civil Rights Act, an employer who used explicit quotas was vulnerable to legal action).

One way to get around this difficulty is to use race norming. The raw scores are converted into percentiles based on the distribution of scores within each group: a white applicant receives a percentile score based on the distribution of white scores; a black applicant’s score represents his percentile within the black distribution; and so on. Then the employer makes hiring decisions on the basis of these race-normed percentiles. Starting in the late 1970s, the U.S. Department of Labor began promoting this solution, offering such race-normed scores for the General Aptitude Test Battery (the GATB, described in Chapter 3).44

By the early 1980s, race norming had became a common solution to the employer’s dilemma. To see how race norming works, we may use the example of the popular Wonderlic Personnel Test, a highly g-loaded paper-and-pencil test that takes just twelve minutes. In its test manual in use during the 1980s, the Wonderlic company gave precise instructions for what it called “percentile selection”—its term for race norming—along with an “Ethnic Conversion Table.” Suppose that five candidates—white, black, Latino, Asian, and American Indian—all got the Wonderlic’s mean score of 22 prior to any adjustment for group distributions. Using the Ethnic Conversion Table, the personnel office would then assign those five candidates, all of whom had identical scores, to the 45th percentile (for the white), 80th percentile (for the black), 75th percentile (for the Latino), 55th percentile (for the Asian), and 60th percentile (for the American Indian), and those scores would thereafter be treated as the “real” scores.45 An employer could then hire from the top down using these adjusted scores and expect to end up with ratios of employees that would avoid triggering the Uniform Guidelines.

In 1986, the U.S. Department of Justice challenged race norming on the grounds that it was an unlawful and unconstitutional violation of the rights of people who were neither black nor Latino. In our example, a black with a score of 80 would indeed have a much better chance of being hired than a white with a score of 45, though both had the same score on an unbiased, valid test. The Departments of Justice and Labor adjudicated their differences, agreeing to study the method further. Race norming had few defenders in public, where its unfairness seemed palpable. In the Civil Rights Act of 1991, race norming was banned for any employer subject to federal regulation. For now, this experiment in affirmative action policy—ironically, by far the most efficient from a productivity standpoint and even the “fairest,” insofar as the highest scorers at least won out in competition with members of their own group—has been suspended.

Alternative IV: Returning to the Original Conception of Affirmative Action

We are dissatisfied with all of the foregoing alternatives and are broadly critical of the way in which the well-intentioned effort to end employment discrimination has played out. We therefore close by urging consideration of this proposition: If tomorrow all job discrimination regulations based on group proportions were rescinded, the United States would have a job market that is ethically fairer, more conducive to racial harmony, and economically more productive, than the one we have now. We cannot prove that the proposition is true (just as no one can prove that it is not), but here are two reasons for taking it seriously.

The first is public approval of the old concept of fairness. Preferential affirmative action has been a favorite cause of intellectuals, journalists, and liberal politicians, but it has never been rooted in broad public support. Instead, according to polls taken in the 1970s and 1980s, most Americans favor hiring by ability test scores over preferential hiring for protected groups. At the same time, they approve of having the government offer a helping hand—for example, by offering free courses to people to help them do better on ability tests used for employment. A clear majority of blacks similarly favor ability test scores over preferential hiring.46 A return to policies based on evenhandedness for individuals (not for groups) seems sure to attract enthusiastic and broad public support.

The second reason is the potential for good faith. Our fundamental recommendation for the workplace resembles the one we offered for higher education: get rid of preferential affirmative action and return to the original conception of casting a wider net and leaning over backward to make sure that all minority applicants have a fair shot at the job or the promotion. To the extent that the government has a role to play, it is to ensure equality of opportunity, not of outcome. Once again, we anticipate that the main objection will be that ending affirmative action as now practiced will take us back to the bad old days. As we come to the end of our long wrestle with the new American Dilemma known as affirmative action, let us expand on our reasons for our optimism that the United States can do without it very well.

Try this thought experiment on yourself. If all antidiscrimination law were rescinded tomorrow, would you (if you are an employer) hire whites in preference to blacks or Latinos? Would you (if you are an employee) begin looking for workplaces where you did not have to work with blacks or Latinos? Would you (if you are a customer) seek out stores and services that did not have black or Latino personnel? We put the issue that way to expose a strange dissonance among Americans. We are confident that the answer to all of those questions by virtually all of the white readers of this book is an emphatic, deeply felt “no.” May we even suggest that many of you would feel much happier about what you were doing if, as an employer, you spent your time concentrating on whether a minority applicant was the right person for the job rather than worrying about whether the applicant was likely to sue you if you turned him down; that, as an employee, you would find it a blessed relief to work in an office with black or Latino colleagues where it could be taken for granted by everyone that the personnel office had hired all of you using the same yardstick; that, as a consumer of services, you wish you could choose a surgeon who happens to be an ethnic minority, because you could be confident that his degree meant the same thing for everyone who received it.

We have no doubt that all of the above statements are true for the vast majority of our readers, and yet many people are convinced that the population as a whole would take advantage of the situation if affirmative action were ended. Talk about it with your friends, and you will find it to be a commonplace not limited to yourself. Although they too are authentically committed to treating people fairly regardless of race, color, or creed, they worry that massive bigotry still exists and will bring back the bad old days as soon as the heavy hand of the government regulation is lifted from them. By odd happenstance, the people one knows personally are much more fair-minded than the people one doesn’t know personally.

Is this really true? That bigotry still exists is incontestable. But that does not mean that bigotry would prevail in the American job market as of the end of the twentieth century if the vast machinery of antidiscrimination law did not exist. Much of what we have presented in this chapter about occupational gains by blacks in the years before and after 1964 suggests the opposite. The civil rights movement authentically raised white awareness of the oppression and exploitation of blacks in the job market. The trendlines in both white behavior and black outcomes began to move in the right direction, gathering speed. The civil rights legislation came along at the same time and probably tweaked the slopes of those trendlines in some instances. But the great truth about the 1960s was not that the nation finally enacted the civil rights laws but that the American people were finally and inexorably moving in the right direction anyway. We are asking that you consider seriously the proposition that it is feasible to remove antidiscrimination law, replacing it with vigorous enforcement of the time-honored American principle that all citizens are equal before the law.

As in the case of college admissions, some economic and occupational reshuffling would occur. Some minorities would fail to get jobs that they get now. If, for example, the Washington Police Department returns to a policy of hiring the best-qualified candidates, a smaller proportion of those new police would be black. Wherever else standards have been lowered to increase the number of minorities in a workplace, the number of minorities in those positions in that workplace would probably diminish. On the other hand, the quality of the Washington police force is likely to improve, which will be of tangible benefit to the hundreds of thousands of blacks who live in that city. Minorities in all walks of life will have lifted from them the post-1964 form of second-class citizenship that affirmative action has imposed on them.

Much of the reshuffling that may be expected will not be bad even for those who are reshuffled. As matters stand, newly hired minority executives in corporations often enjoy short-term benefits (higher pay and status at the front end than new-graduates could ordinarily expect) but a career dead end. Blacks in companies that do business with the federal government are routinely used in highly visible positions as evidence of affirmative action compliance and diverted from the more pedestrian but ultimately more beneficial apprenticeship positions that the white employees have no choice but to serve. Minority businesspeople are channeled into the minority set-aside game, learning how to serve as fronts for contracts that are actually carried out by whites, instead of running the business itself. Affirmative action has deformed many aspects of American life, not least in twisting the ways in which minorities must try to get ahead.

We will not try to estimate what the effects of doing away with job discrimination legislation would be for business productivity. The effects would vary widely by industry and location in any case, from trivial to substantial. Nor will we spend much time talking about the benefits for whites, except to say that these benefits should be counted. It is easy for highly educated whites with many options to look benignly on affirmative action. It has little effect on their job prospects. For a young white man with fewer advantages who has wanted to be a firefighter all his life and is passed over in favor of a less-qualified minority or female candidate, the costs loom larger. To dismiss his disappointment and the hardships worked on him just because his skin is white and his sex is male is a peculiarly common—and cruel—reaction of people who burst with indignation at every other kind of injustice.

Whatever their precise amounts, the benefits to productivity and to fairness of ending the antidiscrimination laws are substantial. But our largest reason for wanting to scrap job discrimination law is our belief that the system of affirmative action, in education and the workplace alike, is leaking a poison into the American soul. This nation does not have the option of ethnic balkanization. The increasing proportions of ethnic minorities—Latino, East Asian, South Asian, African, East European—make it more imperative, not less, that we return to the melting pot as metaphor and color blindness as the ideal. Individualism is not only America’s heritage. It must be its future.