Could CS departments be legally forced to change their practices?
The latest Freakonomics podcast is on tipping and whether it should be banned, i.e., made illegal. One of the arguments for banning tipping is that it’s discriminatory. White servers get more than Black servers, for example. Professor Michael Lynn cited a Supreme Court case that I found described below. If a neutral practice disproportionately affects minorities or women in an adverse manner, then the practice is illegal.
I’ve raised the question here before, whether CS departments could be forced to change their teaching practices in order to comply with Title IX provisions so that more women might participate. One of the arguments I got in response was that no one adopted any practices to explicitly exclude women. This ruling says that the motivation for the practice doesn’t matter — even if it’s a “neutral” practice, if the effect is discriminatory, it has to go. We certainly have evidence that implicit bias exists in computing classrooms and that CS teachers allow their classrooms to develop a defensive climate. Further, we know a lot about how to improve women’s participation in computing. If we have a legal requirement to make computing education available to women, my guess is that we could be required to make change. For example, could we be forced to give up MOOCs as a discriminatory practice, since MOOCs have a measurable discriminatory effect?
In Griggs v. Duke Power Co., the Supreme Court decides that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately affects minorities or women in an adverse manner, then the employer must justify the neutral rule or test by proving it is justified by business necessity. The Court reasons that Congress directed the thrust of Title VII to the consequences of employment practices, not simply the motivation. This decision paves the way for EEOC and charging parties to challenge employment practices that shut out groups if the employer cannot show the policy is justified by business necessity.