Michael F. McGovern, Knight Law and Media Fellow, Information Society Project, Yale Law School, has published Regulating bias: validity liberalism and the politics of civil rights in 1970s America, in the British Journal of the History of Science Themes:
The Civil Rights Act of 1964 made the validity of aptitude tests in employment screening and promotions a major legal and political issue in the United States. A 1971 Supreme Court decision relied on guidelines derived from the American Psychological Association’s test standards to establish liability under the disparate impact theory of discrimination, a major victory for civil rights organizations and allied personnel psychologists. These adherents to what I call ‘validity liberalism’ put faith in practices of technical evaluation as a wedge, both for enforcing the law and for decoupling ideas about ability and merit from evaluations of job performance. But not all testing experts saw these developments as salutary. After the federal government’s own merit examinations were challenged under the US Constitution, a competing contingent of psychologists lined up to defend them, helping confine disparate impact to statutory law. Historians have shown how white backlash against early civil rights victories gave form and substance to the politics of the 1970s. This article argues that scientific dissensus over validation standards became a key fulcrum in this shift, highlighting a previously unexplored episode: the older Civil Service Commission’s effort to promulgate a competing set of validation guidelines to undercut the newer Equal Employment Opportunity Commission.
--Dan Ernst