September 2000
With intentional discrimination now being rare, the concept of systemic
or substantive discrimination is repeatedly invoked in the continuing
debate on equity in Canadian universities. Three recent developments illustrate
assumptions made about such discrimination, which is said to occur when
institutional policies and practices unintentionally discriminate against
women and certain ethnic groups. The first is the Natural Sciences and
Engineering Research Council’s (NSERC) restriction of its University Faculty
Awards to women. The second is a study of the University of Toronto (U
of T) faculty’s ethnic composition, showing that it is much less diverse
than the student body, and that it is unlikely to change much in the foreseeable
future.
The third – and most troubling – is allegations of racism in U of T’s
Physics Department, made by an Ontario Human Rights Commission (OHRC) investigator
in his report on of a grievance by geophysicist Dr. Kin-Yip Chun.
The report claims that Chun’s failure to obtain a tenure-track appointment
at the University in four separate competitions between 1987 and 1992 reflects
an appointments procedure which “effectively screens out racial minorit[ies].”
The investigator dismissed an internal U of T investigation finding no
evidence of racial discrimination because it did not consider the implications
of a “prevailing substantive theory of discrimination.”
But there is no such “theory.” In the name of combatting racism and
sexism, activists have instead adopted a simplistic doctrine called the
proportionality fallacy: a presumption that, if women and ethnic
groups are not represented in the work force roughly in proportion to their
population ratios, then some form of discrimination must be the cause.
This doctrine obviates the need to examine historical, sociological, psychological
and other factors that might account for the patterns of representation.
In universities, the doctrine opens the door for unsustainable policies
such as preferential treatment of special interest groups, and almost always
detracts from the principle of merit in education and scholarship. Moreover,
because it absolves its proponents from the responsibility of actually
identifying a discrimination mechanism, it legitimates shoddy arguments
and may even support witch-hunts for racism and sexism in every aspect
of human behaviour.
Unintentional discrimination may, of course, occur in educational institutions
and workplaces. It can be rectified when the source of bias is identified;
two examples are: the provision of facilities enabling the disabled to
attend colleges and universities, and of left-handed writing tablet chairs
in lecture halls. Thus the possibility of unintentional bias cannot be
dismissed, but the emphasis must be upon identifying the actual bias mechanism,
so that appropriate adjustments can be made.
This rational understanding of systemic discrimination, however, seems
not to have gained acceptance because the proportionality fallacy is now deeply entrenched;
as an example, aptitude tests used in screening students or for employment are often arbitrarily
restructured to eliminate any deviation from proportionality. Thus, in
the USA, universities frequently adjust scores on scholastic aptitude tests
by race solely on the presumption that such differences must be the result
of some unidentified bias factor.
The doctrine originated in attempts to eradicate the deeply-rooted effects
of racial segregation in the USA. The landmark 1964 Civil Rights Act targeted
only intentional employment discrimination; but the pace of change was
glacial, and a US Senate report on the 1972 Equal Opportunity Employment
Act viewed discrimination as being much more complex than the consequence
of ill-will. It noted that “Experts… describe the problem in terms of
‘systems’ and ‘effects’ [such as] the mechanics of seniority [and] the
perpetuation of … discriminatory practices through various institutional
devices, and testing and validation requirements.” These remarks reflect
a precedent-setting 1971 US Supreme Court ruling, which disallowed a high-school
equivalency education requirement for promotion in a previously segregated
Southern company, because blacks disproportionately failed this test. The
Court viewed the company’s financial assistance for employees’ education
as evidence of lack of intent to discriminate, but nevertheless prohibited
the requirement because of its consequences for the pattern of employment.
Furthermore, the Court placed upon the employer the burden of demonstrating
that any employment test was clearly related to a specific job performance.
The 1972 Act granted enforcement powers to the US Government’s Equal
Employment Opportunities Commission (EEOC), which has since aggressively
promoted the notion that disparate impact, as opposed to disparate treatment,
is a test for discrimination. Hence, if the numbers of “visible minority”
employees in a job category fall below 80 percent of what the EEOC deems
to be the relevant applicant pool, an employer must show that it has not
discriminated, and that any screening procedure is clearly relevant to
the specific skills required for the job. Failure to provide evidence deemed
satisfactory by the Commission can result in the imposition of severe penalties.
Canada has adopted the philosophy underlying US policy. In 1985, our
Supreme Court ruled intent and motive irrelevant in establishing discrimination
so that, as in the US, investigations focus on effects. Statistical evidence
pointing to “under-representation” of a designated group within a workplace,
and anecdotal evidence by individuals have both been accepted by human
rights tribunals as indicating systemic discrimination. Furthermore, these
tribunals use the balance of probabilities test in adjudication, requiring
only that an accuser establish a prima facie case. In practice this means
that the accuser has only to make a plausible case, and the accused is
burdened with providing a persuasive justification for the conduct. Such
an approach is ripe for abuse by grudge-bearers or ideological axe-grinders.
The essence of the proportionality fallacy was identified thirty years
ago by Oxford University psychologist Corinne Hutt in her analysis of female
and male employment patterns. Concluding even then that these could be
explained largely by sexual differences in psychology, and thus by women
making entirely reasonable choices having nothing to do with discrimination,
she noted that, in the absence of evidence of a mechanism, use of the proportionality
criterion reduces the concept of discrimination to a meaningless tautology.
The current paucity of women faculty in the physical sciences and engineering
is an excellent example; the evidence points overwhelmingly to a lack of
qualified candidates for reasons having nothing to do with any kind of
discrimination. US statistics show that, in 1998, women earned only 13
percent of doctoral degrees in physics and engineering, much less than
the 50 percent advocated by those insisting on defining equity in terms
of outcome rather than opportunity. This is consistent with psychological
evidence; thus, amongst mathematically precocious youth, females are much
less likely than males to choose mathematics, the physical sciences or
engineering s a career, opting instead for fields such as the humanities
and biology.
This is not to say that decades ago there was no discrimination against
women in academia. A recent detailed study of Canadian university hiring
patterns is consistent with British and US observations. For several disciplines
the study compared the fraction of female hires with the corresponding
fraction of recent doctoral graduates, finding the same pattern for all
disciplines: the data suggests discrimination against women prior to about
1970, and subsequently in favour of women.
Hence NSERC’s initial restriction of its University Faculty Awards to
women (subsequently aboriginal men have been included) illustrates the
consequences of uncritical acceptance of the assumption of discrimination
without regard to issues of merit and fairness. Prior to the exclusion
of men, women won 57 fellowships and men won 363. It seems hard to avoid
the conclusion that disqualifying the category of overwhelmingly successful
applicants must have an effect on the operation of the merit principle
in the awarding of these fellowships.
In considering the ethnic composition of university faculty, a number
of factors should be considered when discrimination is suspected. As an
example, in many Western countries, and in particular in Canadian cities
such as Toronto, immigration is rapidly changing the demography. On this
ground alone, one cannot expect any but the most recent recruits to a workplace
to approximately reflect the applicant pool. This is especially true of
university faculty, for which the turnover can be very low. Leaving aside
the effects of ‘equity’ hiring, the current Canadian university faculty
composition appears generally to reflect the availability of suitable candidates
at the time of hiring.
Even if one accepts the notion of proportionality, there remains the
problem of statistical fluctuation. Calculations show that, for as few
as 50 employees, random sampling from a population with just two categories
fails the EEOC’s 80 percent criterion one trial in five. For multiple categories
or smaller groups the probability that deviations from proportionality
are solely due to random fluctuations mounts rapidly.
Considering all these factors, it makes no sense to compare the composition
of the “student body” with that of a relatively unchanging faculty as a
method of identifying systemic discrimination – the most recent extension
of the proportionality fallacy.
Turning now to Dr. Chun’s grievance, we note the conclusions of U of
T’s investigator that he was exploited in his role as a research associate,
but that there was no racial discrimination in the disputed appointment
competitions. Thus our concern lies with imputations of systemic discrimination
made in the report of the Academic Freedom and Tenure Committee of the
Canadian Association of University Teachers (CAUT) and of both systemic
and intentional racism made by the OHRC investigator: both manifest the
conceptual and procedural difficulties we discuss above.
One would expect a CAUT committee charged with guarding academic freedom
to be aware of the difficulties inherent in investigating systemic discrimination,
and of human rights tribunals’ penchant for trampling on academic freedom.
But its report is oblivious to these difficulties. It embraces the proportionality
fallacy and the concomitant idea that anything resulting in deviation from
proportionality suggests racism. It approves the “guilty until proven innocent”
mentality of human rights tribunals. While confessing to knowledge of only
one side of the case, it is replete with unsupported speculation.
The OHRC report is a disgrace: it divines racism in a troubled relationship
between an individual and the University, when alternative explanations
are at least as plausible. Typically, it reads racism into a referee’s
frank but supportive comment on Chun’s facility with English. It makes
much of a computer virus incident while ignoring the implication of one
of the contested hiring competitions, in which the search committee chair
was the son of a Japanese Canadian interned during World War II, and the
successful individual has an Albanian Muslim heritage. Alluding to the
ethnicity of the older members of the Physics Department, it speaks of
“cronyism,” when the ethnic composition reflects the availability of qualified
candidates at the time of hiring. It ignores the implications of recent
hiring data, which show that, in the last 10 years the so-called “under-represented
minorities” were awarded 25 percent of the positions, even though they
accounted for only 10 percent of the applicants. Worst of all, it fails
miserably to address the central question: Was Dr. Chun demonstrably better
qualified than the successful candidates?
The report’s claim that U of T’s internal investigation was “flawed”
is unsupportable. The U of T investigator, Professor Yip, is of Asian origin.
He is experienced in the resolution of grievances, both as an officer of
the University’s Faculty Association, and as a member of the University’s
Grievance Review Panel. Furthermore he was assisted by legal counsel familiar
with human rights law who is now an Ontario Appeals Court judge. Professor
Yip observes that the OHRC report presents no facts not already covered
in his own report and that, as both a researcher and one who has handled
faculty grievances, he is familiar with “looking for a pattern [of discrimination].”
“My investigation … did not see a pattern of discrimination that can
be supported by fact,” he wrote.
In conclusion, a charge of systemic discrimination cannot be substantiated
without a reliable and disinterested analysis. First, alternative explanations
of an unexpected pattern of participation or employment must be examined.
Second, a specific mechanism of bias should be demonstrated in the particular
case. Arguments based merely on an assumed necessity of proportionality
between ‘populations’ and the participation of specific groups (in education
or employment) are usually fallacious.
It’s time that Canadians questioned both the ways in which the concept
of systemic discrimination has been elevated to the status of a “substantive
theory” by our judicial and other organizations and the fairness of the
methods used by human rights tribunals to investigate claims of both intentional
and systemic discrimination.
A shorter version of this paper was published in the Forum section of
the University of Toronto Bulletin (April 24 2000) under
the title: “False Doctrines: ‘Systemic Discrimination’ is the new buzzword
in equity cases, but it’s based on an entrenched fallacy.”
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