The danger comes from the fact that courts generally give deference to ad-hoc processes, whereas systematic processes are inherently suspect. That's why interviews are fine but IQ tests are legally suspect.
As another example in this general line of thought, compare Grutter v. Bollinger and Gratz v Bollinger. Point-based racial discrimination is illegal, but "holistic" "individualized" processes where race is just a "plus factor" are legal. (Only discrimination in favor of non-Asian minorities, of course.)
I agree that this legal doctrine is insane.
Completely tangentially, since you mentioned relevant questions which are illegal to ask, I'd love to see an economic analysis of this topic. Specifically, the classical Akerlof lemon market paper assumes a complete inability to measure quality. But in the hiring market there are only a few dimensions for which one is unable to measure quality. That complicates the analysis significantly, so I'd love to gain some intuition on the topic.
As another example in this general line of thought, compare Grutter v. Bollinger and Gratz v Bollinger. Point-based racial discrimination is illegal, but "holistic" "individualized" processes where race is just a "plus factor" are legal. (Only discrimination in favor of non-Asian minorities, of course.)
I agree that this legal doctrine is insane.
Completely tangentially, since you mentioned relevant questions which are illegal to ask, I'd love to see an economic analysis of this topic. Specifically, the classical Akerlof lemon market paper assumes a complete inability to measure quality. But in the hiring market there are only a few dimensions for which one is unable to measure quality. That complicates the analysis significantly, so I'd love to gain some intuition on the topic.