[AlwaysWrong]

Hi, you might find this interesting:

From: Haney, Craig and Hurtado, Aida, "The Jurisprudence of Race and Meritocracy: Standardized Testing and "Race-Neutral" Racism in the Workplace" Law and Human Behavior, Vol. 18, No. 3, 1994 p. 227.

(I just copy-pasted from the PDF so it's a bit messy. You should be able to Google Scholar it pretty easily. Point #2 "Merit is measurable" seems to be the most pertinent.)

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The core assumptions of this meritocratic model are so central to legal thinking that they are neither made explicit nor called into question, not even in the most sweeping legal decisions aimed at eradicating racial
discrimination. Briefly summarized, these assumptions are as follows:


1. There is some more or less tangible quality, which can be loosely described as "merit," that people possess in varying amounts, t l Merit refers for the most part to the bundle of ability and skills that individuals possess and upon which they can and should be allocated opportunities and rewards. Thus, Fass (1980) has accurately described what she called the "impulse toward meritocracy," namely, "the just and equitable distribution of training and rewards according
to individual abilities" (p. 436). The law recognizes discrimination only when actions or outcomes violate this merit-allocation principle. Otherwise, people are thought to "deserve" what they get. In the early development of antidiscrimination law, courts were willing to presume actionable discrimination on the basis of disparities in outcome that could not be attributed to the absence of merit. In recent years, the presumptions have been subtly shifted: increasingly, an absence of merit is presumed to explain disparities in outcome whenever intentionally
discriminatory actions cannot be established.


2. Merit is measurable. This is the operating assumption of ability testing of all types, including that which is used to allocate employment opportunities and rewards. In the allocation of job opportunity, "merit" means primarily a measured potential to succeed or perform appropriately in the job in question. When economic rewards are being allocated, then merit often includes explicit consideration
of measured past performance (thought to involve some combination of ability and effort). Promotions function in this scheme as something of a hybrid and are allocated typically on the basis of measures of both meritorious past
performance and merit-potential for more rewarding work.
There are several separate sub-components to this assumption of measurability:


(a) The standard by which merit is measured is thought to be relatively unitary. That is, although the type of merit most relevant to a particular job may vary, the same kind of merit, measured in the same way, is equally relevant to
all people who occupy or aspire to the same job. In the context of employment discrimination law, "validation" is the process by which employers can demonstrate
that disproportionate numbers of White recipients of occupational opportunities and rewards possess greater amounts of the type of merit that is relevant
to the job in question.


(b) Merit is relatively immutable. This justifies its measurement at the outset of an occupational career, before job candidates have had a chance to learn or improve at, or even transform, the job itself. It also underpins
a consistent emphasis in employment law on the process of selection rather than on, say, job training.


(c) Finally, concerns about measuring the merit of individual workers typically override concerns about measuring and transforming the nature of the workplace. Thus, the characteristics of the job are taken as a given, rarely (if ever) to be altered in response to the distribution of skills or alternative approaches
to job performance utilized by different workers or job candidates.


3. Persons and performances that lack sufficient merit are thought to be properly devalued or punished. That is, if people do not "measure up," they are not allocated opportunity or rewarded for their actions. Group disadvantage or "disparate impact" (which is visited with uncanny regularity upon minority groups in the workplace) is thought to be the product of either a collective lack of
merit or overt discrimination. The law acts only upon group disadvantage that is not caused by a collective lack of merit and, therefore, must be the result of discrimination. But, as noted above, courts are increasingly willing to presume a lack of merit, rather than the presence of discrimination, when confronted by evidence of group disparity.

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