San Francisco, CA.—Gender victimization activists who believe that rampant, habitual discrimination is the rule in the workplace are gearing up to prove their case "scientifically" on a state-by-state basis. For starters, Employment Discrimination Against Women in Washington State, 1997, published by the Rutgers School of Law, contends that gender discrimination is "regular operating practice" among private employers in Washington state. The Ford Foundation is bankrolling similar studies in all 50 states.

The Rutgers study concludes that every fourth private employer in Washington state intentionally discriminates against women. That alarming conclusion demands an examination of its methodology. The authors, led by Rutgers law professor Alfred W. Blumrosen, did not consider the actual evidence of harm nor examine the outcome of specific charges. Rather, they utilized probability analysis to presume employers’ guilt.

They examined the number of women employed in an occupational category compared to other establishments of its size in the same industry and geographic area. The authors attribute any significant deviation below the norm to intentional gender discrimination.

The study correctly points out that the courts have recognized the legitimacy of statistics to support claims of discrimination in the workplace. What they fail to point out and apply to their own work, however, is that statistics alone do not show intent, and cannot serve as the sole evidence to determine an employer’s guilt. The legal standard requires additional evidence of discriminatory practices, does not equate accusation with guilt, and offers the accused party what this study does not, the opportunity to defend himself or herself.

The authors of this study are attempting to use statistical disparities, which are often the rule rather than the exception in America, as the sole arbitrator of discriminatory practices. For instance, the study cites more than 3,700 gender discrimination charges, containing almost 7,000 issues raised, that were filed against private sector employers in Washington state between 1990 and 1997. These numbers, however, do not reflect the number of meritorious complaints and many other cases may go unreported -- as the authors correctly acknowledge. But this study provides only part of the story.

According to the U.S. Equal Employment Opportunity Commission (EEOC), fewer than one in five sexual harassment charges results in a meritorious outcome. Fewer than one in twenty is found to have reasonable cause. Of sex-based charges, about one in eight charges results in a meritorious outcome. Only one in twenty-five is found to have reasonable cause. By equating a claim of discrimination with actual guilt on the part of the accused, the authors not only gloss over important case data, they ignore common legal standards for determining discrimination.

The authors of this study are twisting data to fit the pre-ordained conclusion that affirmative action is necessary to counter gender discrimination they describe as "'regular operating practice' of a significant number of employers, rather than merely the hostile acts of a few individuals." What’s more, they plan to carry this message to every state in the country.

There is no doubt that gender discrimination still exists. But instead of a serious evaluation of discrimination against women in the workplace and the efforts to combat it, this study emerges as a witch hunt in search of gender discrimination.

— Naomi Lopez