The jurisprudence of race and meritocracy

This article examines the jurisprudential interrelationships between the concept of merit, the tradition of legal individualism, and various doctrines of employment discrimination law. Specifically, we review evidence of continuing racial disparities in income and employment that have persisted despite decades of litigation to reduce or eliminate them. We argue that the unique jurisprudential role played by the concept of merit has undermined legal attempts to address the structural causes of racial discrimination in the workplace. We further suggest that the use of standardized employment tests and the nature of the legal doctrines that govern their use reflect certain outmoded meritocratic assumptions that, by individualizing the nature of racial disparity, contribute to continuing group disadvantage in the workplace.