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Communications of the ACM
Viewpoint: On Bias, Science, Equal Protection, and Liability
Red Ball Jets were the shoes of choice among kids on my block. Kids with these shoes could run faster, jump higher, and kick farther than those wearing other shoes. While, as far as I know, no one subjected this assertion to empirical analysis, those picking teams nonetheless accepted it. Failures among Red Ball Jetless kids bolstered our confidence in the assertion. Failures among Red Ball Jet kids were insignificant anomalies. The only failure that could reduce a kid's status independently of Red Ball Jetness was failure to accept the assertion. One could not, after all, consume a week's worth of cartoons without at least one affirmation of the assertion by our most trusted information source. Yet few kids today would know what a Red Ball Jet is. The social setting of our time created our bias.
Gould noted that scientists are subject to social bias in the same way as children [2]. Scientists once published that women "excel in fickleness, in inconstancy, absence of thought and logic, and incapacity to reason." Certainly the biases of that day affected outcomes, both in industry and under the law. Children decided what to study and employers decided whom to hire misguided by "scientific" bias. Meanwhile, judges held that equal protection did not guarantee the right of a woman to vote. I can imagine that it was difficult to bring this contradiction to social awareness. Science and law twisted together by social context, defined and were defined by, a concept of equal protection that differs from ours today. Those that challenged the law lost. Those that challenged the science could not publish. Perhaps the action of competition in a free market was the strongest advocate of change, a society or employer restricting choice with social dogma being less vital than competition that explores both social and technical issues empirically. An explosion in productivity did come with a phenomenal expansion of equality in a society that valued free markets. Economic pressures have influenced both covariates [6]. In the U.S., economic pressures toward equality express themselves through an interesting twist of ideal and law.
Law, in the U.S., clamps influences of the abstraction, equal protection of the law, to profitability. Understanding this interaction requires some history of equal protection in the U.S. This history falls on the transition clocked when the British brought the contradiction of involuntary servitude in a free society to international light in the early 19th century. Beginning with worldwide acceptance of slavery, this transition accomplished worldwide rejection of government sanctioned private-sector slavery in 1980 [6]. The U.S. explicitly stated its ideal of equal protection in 1868, immediately after it restricted states from sanctioning involuntary servitude [1, 3].
That children and felons represent groups we must treat differently under the law easily carries restrictions to the concept of equal protection. Questions from other groups have resulted in far more confusion. In the past, equal protection was not violated when sex and age served to disenfranchise voters, or when men alone paid poll taxes (see Oregon vs. Mitchell, Breddlove vs. Suttles, and Minor vs. Happersett). After the prodding of several civil rights amendments, equal protection has become sufficient to exclude most of these instances of legislative discrimination. Equal protection has labeled an evolving concept. It remains insufficient to prevent involuntary servitude where those enslaved are selected from young men and the enslavement is also conscription (see Rostker vs. Goldberg). In fact, even though we find worldwide rejection of private-sector slavery, enslavement by the collective retains worldwide acceptance. Since history along the transition that the British clocked demonstrates that equal protection tends to lose restrictions, we should not assume this concept has achieved perpetual stability.
Even as the U.S. legislature continued to prod its court's equal protection opinion with civil rights amendments, it also bound this opinion to employment with federal civil rights law [4]. We allow the courts to interpret this law, and trust that a court's latest opinion leaves this law in harmony with its latest opinion on equal protection, whether or not one or the other has found the opportunity of publication. Often a change to one without the other would require far more than creativity. Thus liabilities related to compliance with federal civil rights laws restricting employment will change with changes in our understanding of equal protection. Where expected values rely upon these liabilities, one would expect interest in predicting these changes. Employment practices initiated during a period of stability might establish a history of employment discrimination by the time a change in social awareness of equal protection begins to influence interpretations of employment law.
Scientists once published that women "excel in fickleness, in inconstancy, absence of thought and logic, and incapacity to reason." Certainly the biases of that day affected outcomes, both in industry and under the law.
As an engineer wishing to employ others profitably, I cannot imagine confining my choices to comply with social preferences that vary with race, creed, sex, or national origin. These characteristics are not essential in maximizing employee potential. Such confinement is also illegal in the U.S. Yet there remain important questions regarding what is, or is not, "discrimination on the basis of race, creed, sex, or national origin" in employment or education. For example, how would one not discriminate on the basis of sex in requiring, for the same position, or the same "Presidential Award," physical standards that vary with sex? If a law requires, or allows, this discrimination, does it provide equal protection? Certainly not by a naive trust of the written words. Yet these are practices of U.S. government agencies and of government-funded educational institutions. This might be an area of disagreement strong enough to affect our liabilities in future courts.
Currently, U.S. government employment practices continue to restrict, based upon sex, things so trivial and with such unlikely connection with sex and job performance as an employee's hair length. What changes in private employment liability might flow with the same social current that eventually weathers this miniscule social more away? Where equal protection has shifted in the past, we have seen drastic changes in public opinion. For example, at one time it was commendable to restrict overtime to men (see Muller vs. Oregon). It is now seen that laws and employment practices enforcing this unequal protection restricted career choices for women. Today an employer restricting overtime in this way is violating the law, and an employer that has, in the past, demonstrated a history of discrimination. Discrimination might be most difficult to see when disguised as charitable or commendable behavior. Yet when we find employment discrimination in this disguise, the liability realized by an employer could be accentuated by a simultaneous loss of expected good will. It is thus, a good place to look.
We have more difficulty identifying questionable practices before time passes a shift in public opinion. This is why we see laws enforcing sex-based assignment of overtime as unconstitutionally discriminatory while those that passed and initially interpreted these laws did not. Today we have laws that forbid discrimination in employment, but that allow, through interpretation, what we hold as constitutional discrimination. For example, subsidizing diagnostic medical procedures for employees is certainly commendably charitable. Yet a future generation could notice that where these subsidies flow primarily to employees of one sex, they become compensation based upon sex. It is commendable to protect employees from the display of jokes, cards, or posters that characterize those of their sex in demeaning ways. Yet a future generation might notice that where this protection does not apply equally to the sexes, it is protection based upon sex. It is commendable to contribute to expand an awareness of career opportunities among employees' children. Yet a future generation might notice that where this contribution targets children of one sex, it suggests that the employer expects greater value employing people of this sex [5]. Indeed, many currently common employment practices could become illegal with an arguably inevitable shift in our understanding of equal protection. Employers with shorter histories of these practices will enjoy a bonus of competitive advantage at that time.
References
1. Curtis, M. Fourteenth amendment. In The Oxford Companion to The Supreme Court of the United States. Oxford University Press, New York, 1992, p. 309311.
2. Gould, S. The Mismeasure of Man. New York, W.W. Norton and Company, 1983.
3. Hall, K. et al., eds. The Oxford Companion to The Supreme Court of the United States. Oxford University Press, New York, 1992.
4. Schlei B. Civil Rights Act of 1964. In The Oxford Companion to The Supreme Court of the United States. Oxford University Press, New York, 1992. p. 148.
5. Sommers, C. The War Against Boys. Simon and Schuster, New York, 2000.
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