Under the concept of disparate impact established in the notorious case of Griggs v. Duke Power (1971), any employment policy or practice that operates to exclude black people “is prohibited, notwithstanding the employer’s lack of discriminatory intent.” As held in Griggs: “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.”

Any practices having disparate impact, such as tests disproportionately failed by black people, are prohibited unless they can be justified as necessary to job performance. Proving such justification is onerous and costly. The rationale given in Griggs is that Congress, not the employer, gets to decide what tests are necessary for a job based on what is described as a commonsense approach: “Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality.” Yet this notion of “common sense” is not entrusted to the employer but mandated by Congress through the Equal Employment Opportunity Commission (EEOC).

Further, as stated in Griggs, the burden of proof is reversed from accuser to accused. Once a prima facie case is made out—for example, by statistics that show a gap in group outcomes or results—the burden is on the employer to show that there was no discrimination.

Although tests and other measures of merit are not absolutely forbidden, they are costly to justify, not least because they are subject to scrutiny by the EEOC. This goes against the basic concept of contractual freedom and freedom of association: it is no freedom if there is a legal duty to give reasons for a decision that must meet with the approval of the EEOC. The duty to give reasons and justifications turns the employer’s common-law liberty into a mere license held at the will of the state. This duty to give reasons and justifications for contractual decisions or decisions about whom to associate with also violates the principle of self-ownership. As Hans-Hermann Hoppe remarks in his “Introduction” to The Ethics of Liberty,

In The Ethics of Liberty Rothbard gives the following answer to the question of what I am justified doing here and now: every person owns his own physical body as well as all nature-given goods which he puts to use with the help of his body before anyone else does; this ownership implies his right to employ these resources as onesees fit so long as one does not thereby uninvitedly change the physical integrity of another’s property or delimit another’s control over it without his consent.

Perverse Incentives

The civil rights framework creates perverse incentives for employers to hire by quota in order to avoid incurring liability for discrimination. The hazard is that unless attention is paid to factors such as race and sex, statistical analysis might thereafter reveal gaps that call for an explanation. In this way, civil rights law—which purports to eliminate discrimination—in fact encourages discriminatory practices because it shifts the focus away from merit-based decisions toward constructing employment statistics that reflect all groups proportionately. The creation of this perverse incentive may be illustrated with the example of age discrimination:

Have you discriminated on grounds of age? Not to your mind. You are thinking only of job skills and profitability. But from the perspective of a government planner with an agenda, it is different. Looking at the facts, it seems like a clear case of age discrimination.

With this new court decision, the burden of proof is on you to show otherwise. But how can something like the absence of a motivation be demonstrated? Now, it is possible or even likely that you might be able to show that factors other than age constitute the main reason for the disparity. But it is a toss-up as to whether the court or the EEOC will agree with you.

The only way to be off the hook completely is to pad your workforce with people hired because they are older.

The effect of civil rights law is therefore to replace the presumption of innocence with a presumption of strict liability to pay compensation for gaps in outcomes. This is indeed totalitarian. It has far-reaching effects beyond the facts of specific cases, creating a system in which innocence and guilt are determined by state officials without regard to basic principles of fair adjudication.

This doctrine of strict liability to pay compensation for any gaps in racial group outcomes is also being extended to justify liability to pay global reparations. There is a “wealth gap” between rich and poor countries, so the first world must transfer wealth to the third world through reparations regardless of whether taxpayers in rich countries are responsible for the economic conditions pertaining in poorer countries:

The “constructive project” [demanding global reparations] to a large extent rests on claims that the ancestors of whites living today mistreated the ancestors of blacks living today. But why are people morally responsible for what their relations have done in the past? Táíwò slices though the problem. It doesn’t matter, he says, whether they are responsible: they are still liable for the damages to the descendants of the mistreated.

An innocent person is under no moral obligation to submit to such strict liability obligations. Holding people liable to pay for wrongs of which they are not guilty goes against the presumption of innocence and the maxim that the burden is always on the accuser to prove his case. Ei incumbit probatio qui dicit, non qui negat: the burden of proof lies on him who asserts, not him who denies. In violating the presumption of innocence, civil rights law is incompatible with the basic principles of justice.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.