The state has passed a legislature that gives preference to returning veterans over civilians when applying for civil service positions. This has caused a large imbalance in the gender distribution of such positions because veterans (virtually all males) are receiving the jobs over equally or more deserving females. In light of the situation, the main concern being brought up, is whether such discrimination is unjust, and if so, is it illegal? This question will be answered by looking at criteria for illegal discrimination set forth in Griggs vs Duke Power Company, and Washington vs. Davis to reach the final thesis that the discrimination is unjust however, still legal.
To reach the first assertion of the question it is important to define unjust discrimination. For this exploration, unjust discrimination will be when a social inequality is enforced by the policy or when there are discriminatory intents rooted in the policy. This sparks the first argument, which is that the statute is unjust because it upholds on-going female inequality. Even now in the 1980s, around 25% of Americans disapprove of women pursuing careers regardless of their husband’s ability to support the family. There is still a stigma attached to women playing professional roles, and allowing this legislature would prolong such an ideology, making it unjust discrimination. However, one can say that this statue isn’t even being discriminatory towards women. Veterans spent their time in wars fighting for the country, during which, women were able to educate themselves better and work on professional skills. This puts the veterans at a disadvantage as they simply missed out on the opportunities women had, and so this legislature balances the field rather than being discriminatory. But, in reality, this argument doesn’t paint the whole picture. Women are not innocent beneficiaries of disadvantages veterans face for fighting wars. The previous argument offers a subtle implication that women had an advantage for not being in the army. In fact, they are victims of ever-present female inequality that makes many endeavours (such as joining the army) taboo for them. Proof of this is that before 1980s women only made up 1.63% of the total military personnel. And so, these women aren’t being put in advantageous positions, rather, they are making the most out of the limited opportunities they have. Furthermore, this female inequality makes it difficult for women to pursue success in their day-to-day life and so, they have also overcome other possibly less debilitating hardships than the veterans, but hardships nevertheless. Maybe the legislature would be more just if it gave the preference to a veteran who is equally qualified to a civilian, but the current advantage given to them (which gives them preference over even better deserving candidates) promotes female inequality, and thus, is unjust.
And so, is this statute illegal? A criteria was established through the Griggs vs Duke Power Company case which dictates that under the Title VII, the policy in question is illegal if it has:
Now, the first criterion is easily met because it is a known fact that the statute leads to a gap in positions held by both genders. But whether the statute satisfies the second criterion is debatable. Now one can say that being a veteran isn’t related to the job and how one performs in it. Civil service jobs don’t at all require any war experience nor would anyone do better if they have experienced war now would they? This would make the policy illegal, but such an argument isn’t a comprehensive view of the situation. A large number of veterans suffer from post-traumatic stress disorder, physical disabilities and anxiety. In fact, around 30 out of every 100 Vietnam veterans were diagnosed with PTSD. These social disorders, and physical disabilities can easily affect one’s mental health, which is essential to job performance. And so, the advantages veterans would be receiving from this statute are related to the job because it helps them counter-balance the baggage they carry to the civil service positions. In response, one can argue that this statute isn’t actually related to job performance because it doesn’t really address these social disorders the veterans suffer from. Affirmative action helps minority races overcome cognitive biases, a problem that directly downplays their employability. But, this policy doesn’t help veterans overcome PTSD, anxiety or physical disabilities, therefore making it unnecessary to the issue. And, as data shows, 94.6 % of Vietnam-era veterans are employed, which proves that this policy won’t be answering any unemployment issues as there is no such issue. The legislature’s lack of relation to the business should then, make it illegal. However, this argument again doesn’t address the whole situation. The same source also shows that, 1 in every 8 veteran has a severe disability in terms of being able to perform a job. Regardless of what issue causes this disability, this proves the fact that being a veteran directly affects one’s job performance. And so, the statute has a relation to the applicant’s job performance because it gives much needed preference to veterans over civilians for civil service positions. Thus, under the criteria from Griggs vs Duke Power Company, the policy is legal.
However, looking at the situation through one criterion simply isn’t enough. Another criterion that dictates whether a policy is illegal or not was inspired by the case Washington vs. Davis. It says that disparate racial impact isn’t enough proof, and that a “racially discriminatory purpose” is also needed. Although, with that said, it can simply be stated that the disparate impact between genders can be prima facie evidence for a discriminatory purpose behind this policy. There has been on-going female inequality that has not only been accepted but embraced by many people around the world. The fact that this ideology is so widely accepted makes it easy to assume that the state might also support it, and thus pass a law that helps maintain this social inequality. Now, although one can argue against such a claim by showing statistics of increasing female empowerment, there isn’t truly a way to convincingly disprove prima facie evidence. Thus, under the criteria established by Washington vs Davis, this policy would be illegal.
So, which criteria should we follow? In a theoretical world, intentions are very important in deciding the legitimacy of an action. Policies such as affirmative action lead to disparate impact too, but their intent and effect are positive. However, without knowledge of their intentions, these policies can be misconstrued as unconstitutional. Unfortunately, intentions are hard to prove because of how internal they are to the human mind. Sure, there might be facts that suggest the underlying intentions of a policy, but realistically there is ultimately no way of proving claims made about the intent of these statutes. And because of this, the criteria set forth by Griggs vs Duke Power Company is more preferable than the one set by Washington vs Davis because the latter includes a requirement of proving intent, which is ultimately impossible. In theory, the criteria by Washington vs Davis would be better because intentions are essential, but, because of its impracticality, following it is simply not feasible. Thus, under the Griggs vs Duke Power Company criteria, the statute by Disharmony is legal.
We live in a world with an extensive history of oppression. From racism to sexism, there have been many ways a certain group of people has been discriminated against. Fortunately now, we’ve reached a time where such ideologies are archaic, and to most eyes, everyone is equal. Policies like affirmative action and the Civil Rights Act are proof of this new belief system but these laws also come with their string of problems. When implementing these statutes it’s important to realize there’s a fine line between encouraging a minority and oppressing a majority. In the case of Disharmony, although the legislature does oppress another minority (women) in some ways, it still encourages another minority (veterans) enough, making it unjust, but in the eyes of the law, legal.
University of Michigan