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Monday, November 12, 2007 - 11:07amSanction this postReply
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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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Monday, November 12, 2007 - 1:15pmSanction this postReply
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(Edited by John Armaos on 11/12, 1:26pm)




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Post 2

Monday, November 12, 2007 - 1:59pmSanction this postReply
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very good summary Bill - excellent and scathing indictment.  I am also incenced by the way various companies demand to know what % of people are various races when you wish to be their vendor.  If you have seen this, it is very similar to what the Nazis would have done when proving that you were doing business with "true Germans" just change the names on the forms and you have the same laws.

Have you guys seen the University of Delaware stuff?

http://davidthompson.typepad.com/davidthompson/2007/10/soft-student--1.html




Post 3

Monday, November 12, 2007 - 5:09pmSanction this postReply
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Eric,

Another winner. Excellent!




Post 4

Monday, November 12, 2007 - 6:02pmSanction this postReply
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Yeah, Kurt - Slate.com had it posted all over.... big hoopla over it now.....
(Edited by robert malcom on 11/12, 6:03pm)




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Tuesday, November 13, 2007 - 11:17amSanction this postReply
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I like the article in question because being a minority that would have been covered under ENDA, I feel there's an odd contradiction in positive rights laws like this: the use of intolerance of intolerance to make others accept tolerance. Maybe I'm getting rusty in logic, but that seems like it's the use of a double negation to get a different contrapositive statement, which it doesn't seem very likely. Also, it seems to suggest that some kinds of intolerance is perfectly acceptable, so long as you have the force of the government behind it (in this case, intolerance toward those who are intolerant toward the GLBT community). I think the use of any force to make others accept me and folks like me will not improve our chances of employment, rather I expect to find more hostility from employers, whom many are already very open and accepting even of transgendered employees (Citi Group is a prime example of this, being that one of their VPs is an MTF transsexual as well). The more force that's applied on people who are not willing to budge, the more likely they never will budge in any possible case (be it they are logically convinced that being a bigot is ridiculous or what not), and all the law will do is reinforce the belief of such people that the minorities want special attention or privilege for existing (which seems to be case for many in the GLBT community from my observations).

In the end, even if this law gets passed, there's always jury nullification (thank goodness FIJA exists), to nip this nonsense in the bud.

-- Brede



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Tuesday, November 13, 2007 - 5:28pmSanction this postReply
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I believe that the mere fact that there is no conceivable constitutional authority for such a law is argument enough against it.

Ted Keer



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Thursday, November 15, 2007 - 12:41pmSanction this postReply
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Theresa, thank you for the kind words of encouragement!

William, your post is a thorough and articulate examination of the issue. In an attempt to keep the length of my article to a minimum, I merely mentioned that I am against anti-discrimination laws generally due to their error in confusing negative and positive rights. Your arguments eloquently elaborate on that and the other injustices that emerge from such legislation. Appreciated and sanctioned!

Bridget, excellent point about Pelosi and Frank using intolerance to fight against intolerance. Also, I agree with you that using force to deal with prejudice makes things worse. Persuasion is a better method.

Ted, though I’m not a constitutional scholar, it sure seems like your point is correct. How can it be that the majority in congress continue to misinterpret and destroy the very foundation of our legal system?

I sent the link to this article to a few of my non-Objectivist friends, and their responses have been things such as:

“Eric, your reasoning seems sound, but you have to consider it with your heart, not just your head. If you do so, I think you’ll come to see that people shouldn’t have to suffer discrimination, and these laws you're fighting against are doing just that.”
And

“I thought this whole Objectivist thing was supposed to be about self-interest. This legislation is in your self-interest, isn’t it? You don’t have to fight for women’s rights if you don’t think they should have them, but I’d think you would at least fight for your own.”
And finally,

“I think the whole purpose of the law is to make people treat each other civilly. How can you condone racism and sexism and homophobia? By not supporting civil rights, you are supporting the enemies of civil rights. Are you turning into a fascist?”

What do you say to friends like these?




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Thursday, November 15, 2007 - 2:03pmSanction this postReply
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One answers by saying there are only individual rights, and that to  claim group rights of any kind, is to violate individual rights from a non-member of the group... and that a fascist is one who would force that group claiming over that of the individual, not the other way around......

So those supporting the legislation are the real fascist-minded.....

(Edited by robert malcom on 11/15, 2:05pm)




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Friday, November 23, 2007 - 2:09pmSanction this postReply
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As a gay man I am against ENDA out of pure self-interest. I do not want bigots to get the benefits of having talented gay employees- employees that they would not have hired otherwise. What's never remarked upon in anti-discrimination law is that the law itself is racist, homophobic etc. because it assumes that minorities are less talented than non-minorities and that the employer has no self-interest in keeping them. Think about it- if the underlying assumption were truly that gays, african americans, asians, women, the old etc were highly productive model employees then the law would be unnecessary- it would be a given that any employer who would fire one of these paragons would be injuring his business by losing top talent. The action itself would contain its own punishment and government interference would be unneccessary. Instead, the assumption is that the employer has no rational self interest in keeping these employees- that the positive value they provide cannot be enough to offset his bigotry and so he must be compelled- not for his own sake but for theirs.

Not only does the law make racist or homophobic assumptions about the abilities of the minority employee but it also assumes that bigots are being punished by having to accept these employees- the law would hardly stand if it were generally assumed by liberals that forcing bigots to hire minorities was an economic boon to the bigoted bosses and was artificially propping them up by forcing them to keep true talent. If liberals truly believed that minorities were excellent workers they would be condemning this law- because it keeps bigots from suffering the economic consequences of their bigotry. It also keeps bigots from being shunned by enlightened people- it is now impossible to know who hires minorities because they are rational and who hires them because they fear a lawsuit. There's no way to know who the bigots are and no way to know who the good guys are. It also makes it impossible to know who is keeping their job due to merit and who has their job because of their skin color or orientation. As with all irrational laws the evil are benefiting and the good are harmed. Bad bosses get good employees they don't want and good employees are assumed to have their jobs thanks to race or minority status. It's truly disgusting.

BTW- What about black or gay or employees that refuse to work for whites or straights? Should they be compelled by law to take a job at 'Bigots R Us'? Aren't they discriminating if they refuse?

The anti-discrimination laws are non-objective, pernicious, bigoted and collectivist. As a free man who wants to live in a free country I reject non-objective law in all its stripes. As a gay man with self-respect I say- let the bigots be hanged- if they don't want my brains and talent why should the government force them to benefit? Let them collapse as they deserve to.

(Edited by Richard Gleaves on 11/23, 2:13pm)




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Friday, November 23, 2007 - 3:08pmSanction this postReply
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Richard,

Well said!




Post 11

Saturday, November 24, 2007 - 12:33pmSanction this postReply
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Richard, a perfect post.

I've always been against quota's on a pure merit basis (an employer should be free to hire the best employee, not the best Female/Ethnic/Gay/Disabled employee as decide by some arbitrary quota). Thanks for giving me another argument against this socialist shell game.



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