Thomas Sowell
A long-standing legal charade was played out again recently, when Federal Express paid $3 million to settle an employment discrimination case brought by the U.S. Department of Labor.

Federal Express was accused of both racial discrimination and sex discrimination. FedEx denied it.

Why then did they pay the $3 million? Because it can cost a lot more than $3 million to fight a discrimination case. Years ago, the Sears department store chain spent $20 million fighting a sex discrimination charge that took 15 years to make its way through the legal labyrinth. In the end, Sears won -- if spending $20 million and getting nothing in return can be called winning.

Federal Express was apparently not prepared to spend that kind of money and that kind of time fighting a discrimination case. The net result is that the government and much of the media can now claim that race, sex and other discrimination are rampant, considering how many anti-discrimination cases have been "won."

At the heart of these legal charades is the prevailing dogma that statistical disparities in employment -- or mortgage lending, or anything else -- show discrimination. In both the Federal Express case and the earlier Sears case, statistical differences between the mix of the workforce and the population mix were the key evidence presented to show discrimination.

In the Sears case, there was not even one woman who worked in any of the company's 900 stores who claimed to have been discriminated against. It was all a matter of statistics -- and of the arbitrary dogma that statistical disparities show discrimination.

Once statistical disparities have been demonstrated, the burden of proof shifts to the employer to prove his innocence, contrary to centuries of legal tradition that the burden of proof in on the accuser.

No burden of proof whatever is put on those who argue as if there would be a random distribution of racial and other groups in the absence of discrimination.

Happenstances may be random but performances seldom are. Most people are right-handed but, among major league hitters with lifetime batting averages of .330 and up, there have been 15 left-handed batters and only 5 right-handed batters since the beginning of the 20th century. All the best-selling beers in the United States were created by people of German ancestry. Anyone who follows professional basketball knows that most of the leading stars are black.


Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

Creators Syndicate