1. If the court in Consolidated ruled that, even though the statistics told another story, there was no evidence of “intentional” discrimination, would an unbalanced work force due to word-of-mouth recruiting alone ever constitute disparate treatment?

2. Consider your and the court’s response to the above question.Would your decision be different if it could be shown that, in a certain small, all-white firm, recruiting was done only using word of mouth and this effort resulted in only white applicants?Would your decision remain the same?

Issue:Whether a word-of-mouth recruiting effort, which resulted in 81 percent of hires being of Korean descent in a work force which is only 1 percent Korean, is a discriminatory practice.

Facts:Consolidated Services System is a small janitorial firm in Chicago owned by Mr. Hwang, a Korean immigrant, and staffed mostly by Koreans.The firm relied mainly on word-of-mouth recruiting.Between 1983 and 1987, 73 percent of the applicants for jobs and 81 percent of hires were Korean, while less than 1 percent of the work force in the Chicago area is Korean.Mr. Hwang claims he relies on word-of-mouth to obtain employees because it is the cheapest method of employment. Hwang did buy newspaper advertisements on three occasions—once in a Korean-language newspaper and twice in the Chicago Tribune—but these ads resulted in zero hires.

Decision:The hiring discrepancies were not due to discrimination. If an employer can obtain all the competent workers he wants, at wages no higher than the minimum that he expects to have to pay, without beating the bushes for workers—without in fact spending a cent on recruitment—he can reduce his cost of doing business by adopting the stance taken by Mr. Hwang.

Of course, if the employer is a member of an ethnic community, especially an immigrant one, this stance is likely to result in the perpetuation of an ethnically imbalanced workforce. Discrimination is not preference or aversion; it is acting on the preference or aversion. If the most efficient method of hiring adopted because it is the most efficient, just happens to produce a workforce whose race pleases the employer, this is not intentional discrimination.