DEFINING DISCRIMINATION

The National Research Council (2004:Ch.3) used a social science definition of racial discrimination that can be translated into a similar definition of discrimination against women (or women-owned small businesses).1 This social science definition has two components: (1) differential treatment on the basis of gender that disadvantages women and (2) treatment on the basis of inadequately justified factors other than gender that disadvantages women (differential effect). The first component, which constitutes intentional discrimination, is frequently unlawful under either the U.S. Constitution or specific legislation under the “disparate treatment” legal standard. The second component includes instances in which treatment based on inadequately justified factors other than gender results in adverse consequences for women, such as a promotion practice that generates differential effects.2 A process with adverse consequences for women may or may not be considered discrimination under the law under the “disparate impact” legal standard, depending on whether there is a sufficiently compelling reason for its use and whether there are alternative processes that would not produce gender disparities.3 In the areas in which this type of discrimination is unlawful, the reason is to curtail the use of unintentional practices that can harm women, as well as to sanction intentional discrimination that might not be identified because of the difficulty in establishing intent in the legal setting.4

The social science definition of discrimination is broader than the legal standards of disparate treatment and disparate impact because it includes processes and behaviors that warrant attention by policy makers, even though they would not meet a legal standard of proof. For example, subtle—but not necessarily illegal—forms of discrimination in the contracting process could adversely affect the probabilities of women-owned small businesses obtaining federal contracts on which they bid. Also, overt or subtle

1  

Because the focus of this report is on underrepresentation of women-owned small businesses in federal contracting, we do not address the issue of discrimination against men.

2  

Inadequately justified factors refer to those factors within a particular domain that are not justified (germane) for the purpose for which they are used.

3  

Because the Constitution does not itself prohibit disparate impact discrimination, governmental actions will be scrutinized under this second legal theory of discrimination if they are covered by a specific legislative command.

4  

For example, in a racial discrimination employment case, Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court held that the Duke Power Company used high school graduation and standardized testing requirements to mask its policy of giving job preferences to whites and not to blacks. Neither requirement was intended to measure an employee’s ability or performance in a particular job or job category within the company.



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