| | Excellent article, Eric. Well written and well argued. You point out the unintended consequences of this kind of legislation. Getting the law involved in banning discrimination is especially dangerous, because the law is nondiscretionary. It must be followed to the letter, which is why attorneys are now suing to get "Ladies Night" banned from nightclubs in New York. Anti-discrimination law would also prohibit such practices as Chinese employers hiring workers from their own ethnic group who share their background, speak their language and with whom they can work and interact more comfortably.
The real evil of job "discrimination," of course, is that it isn't sufficiently discriminating. It doesn't discriminate between various applicants according to their qualifications, but hires them based simply on their ethnicity, gender or sexual orientation. In other words, it lumps all people of a certain non-work-related category together and treats them as one homogeneous group with no differences in skill or talent.
But what if membership in a particular race, gender or sexual orientation were one of the qualifications for employment? For example, a movie role may require a black actor. In that case, discriminating on the basis of race would be required if one were hiring solely on the basis of qualifications. Or suppose a restaurant, like Hooters, were hiring people to wait on tables. Not only would the applicants have to be women; they would have to be young, attractive, well-endowed women. Could Hooters be sued under the anti-discrimination laws? If one is going strictly by the letter of the law, yes. Hooters could be sued under the criteria of sexism and ageism and, perhaps in the future, under something called "lookism," which is discrimination on the basis of good looks.
It may be replied that as long as the job qualifications include gender and appearance, it is not a violation of anti-discrimination law to hire someone on that basis. But who determines what the job qualifications are? The employer! Before Hooters existed, the qualifications for working at that restaurant didn't exist. The owner of Hooters set the standards, and if the owner can set the standards, then why can't the owner hire anyone he chooses, based on his own personal criteria? What basis does the law have in telling him what standards he can use?
In his book, The Death of Common Sense: How Law is Suffocating America, Philip K. Howard notes, "After thirty years of expanding rights against workplace discrimination, Congress has succeeded in 'protecting' over 70 percent of all American workers. In many states that legislate their own rights, practically everyone can now sue for discrimination. Whom, one might ask, are they being protected against? Many people have multiple potential claims: an Asian woman over forty with a physical ailment, like a bad back, enjoys four protections. Aaron Wildavsky calculated that if you apply all the protected categories, they add up to 374 percent of the American population. Only one group has no protection against employment discrimination: employees of Congress." (p. 126)
The first anti-discrimination laws were passed in order to prevent blacks and other minorities from being denied employment on the basis of race or ethnic background. What has since occurred, however, is that so many rejected job applicants and disgruntled former employees are suing companies for alleged discrimination that there has been a decline in overall employment because of it. Nor are many of these lawsuits likely to be justified. Dismissed employees tend to be upset and angry and to impute unworthy motives to their former employers; minorities, who are sensitive to any hint of prejudice, can easily misinterpret rejection as racist; and dishonest workers will use lawsuits as vindictive weapons for not getting what they want.
A study by the Rand Institute for Civil Justice (no relation to Ayn, of course) reports that employers in states having the most liberal wrongful termination standards and awarding the largest punitive damages have reduced their workforce by as much as 5 percent in an effort to limit their costs. In addition, large jury awards can sometimes bankrupt smaller companies, throwing their employees out of work.
Smaller companies who are less likely to be the target of EEOC (Equal Employment Opportunity Commission) investigations, who cannot afford to consult attorneys on ordinary personnel decisions, and who do not have the money to fight vindictive lawsuits alleging discrimination are the most reluctant to take a chance on minority applicants. As a result, minority employees tend to be concentrated in larger companies in which they have less direct involvement and exercise less authority, and to be excluded entirely from many smaller companies. Not that this exclusion is racist; it is simply an economic decision based on the legal costs and liabilities incurred from the hiring of minority applicants. Employers would rather take a chance on a white male, who can easily be gotten rid of if he doesn't work out, than be stuck with a minority whom they can't fire without incurring huge legal expenses.
It is true that minority job applicants who are rejected for employment can also sue for discrimination, but they are far less likely to do so than employees who, after being hired, are then fired or denied promotion. Between 1972 and 1987, only 19 percent of employment discrimination lawsuits focused on hiring. By contrast, 59 percent were based on wrongful termination, and 22 percent, on discrimination in pay, promotion, assignment, and other employment policies. Similarly, damages awarded from discrimination lawsuits are typically not as large for job applicants as for employees denied promotion.
In addition, laws now exist that severely restrict the scope and candor of an employee's performance evaluation. There has been a rash of litigation over what is called "compelled self-defamation" resulting from bad evaluations. "Compelled self-defamation" occurs if the recipient of a bad evaluation has to disclose it to a future, potential employer. Nor can the evaluation be too positive, at least for blacks and minorities, since that would impede their desire for self-improvement, according to the Equal Employment Opportunity Commission.
It has gotten to the point that employers are reluctant even to give job references, since whatever they say could be construed in a way that invites a lawsuit. If a negative reference is given, it could be considered defamatory or discriminatory; if a positive one is given, it may conflict with the employer's failure to promote the employee which could itself be considered discriminatory. Consequently, many employees are recruited by word of mouth, from friends or from friends of friends. This places workers without connections -- such as the black and the poor -- at a disadvantage.
One study examined why, in Brooklyn's Red Hook section, an area that includes both factories and public housing projects, the local residents couldn't get jobs. The issue was not race (most of the workers were black and Hispanic); nor did it turn out to be education. It was just that friends and families of existing workers were far more reliable than people who lacked such connections. So nearby public housing residents, striving desperately to break their cycle of poverty and unemployment, couldn't get in the door.
Even overtly dangerous conduct no longer constitutes legal grounds for discrimination. In one notorious case, a postal worker in Maine was fired after he displayed erratic and threatening behavior, only to have a federal judge rule that the firing violated the law, because it was based solely on a fear that the worker might become violent.
In another case, a worker in Tampa, Florida brought a loaded gun to work and threatened co-workers and bosses. After the company fired him, a federal judge ruled that the firing may have violated the employee's civil rights and that the company should have found some "reasonable accommodation" for him.
Not only are potentially violent employees protected from discrimination, but so are employees with highly contagious diseases. In 1987, the Supreme Court ruled that a school board that fired a teacher with tuberculosis was guilty of discrimination. The Court stated: "It would be unfair to allow an employer to seize upon the distinction between the effects of a [contagious] disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment."
In other words, if you cannot discriminate against a person just because he suffers from a disease, then you cannot discriminate against him on the grounds that he might infect others. This reductio ad absurdum of antidiscrimination law is the logical dead end of denying a business the right to select its own employees.
Consequently, companies are now forced to accommodate incompetent, untrustworthy and even dangerous workers, all in the name of "fairness". Once the government can prevent employers from discriminating on the grounds of race, religion, sex or national origin, then there is nothing to stop it from outlawing discrimination on any other grounds, good or bad, and ultimately from usurping entirely an employer's right to hire and fire his own workers.
Laws against private discrimination also violate the 13th Amendment to the Constitution, which bans involuntary servitude and, by implication, involuntary associations. The only legitimate basis on which the Constitution can be invoked against discrimination is in the context of discriminatory law for which the 14th Amendment is the appropriate antidote.
It is time to repeal all laws against private discrimination and free up the American workplace, so that employers will once again have control over their own businesses. If these laws were repealed, the kind of discrimination that most people find offensive, such as denying jobs and promotions to the most productive workers, would gradually disappear, because competition among employers would eliminate it. Companies who hired and promoted incompetent workers, based on race, gender or sexual orientation would be at a competitive disadvantage, lose money, and in some cases, be forced out of business by their more efficient rivals. Free-market capitalism is the antidote for invidious discrimination! (See in this connection, George Reisman's excellent pamphlet, "Capitalism: The Cure for Racism.")
- Bill
(Edited by William Dwyer on 11/12, 11:14am)
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