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The Mohammed Cartoon Controversy and Trends in the U.S.:

In the wake of the Mohammed cartoon controversy, and the often craven reaction in Europe and the U.S., I thought the concluding paragraphs from my You Can't Say That! have special resonance:

One price of living in a free society is having to tolerate those who intentionally or unintentionally offend others. The current trend, however, is to give offended parties a legal remedy, so long as the offense can be construed as "discrimination." Yet the more the American legal system offers people remedies for offense, the more they are likely to feel offended. This is true for two reasons. First, as economists point out, when you subsidize something, you get more of it. Therefore, if the legal remedies of antidiscrimination law, particularly monetary remedies, subsidize feelings of outrage and insult, we will get more feelings of outrage and insult, a net social loss. Second, economists have also noted the psychological endowment effect, which, in effect, means that people tend to consider something they own to be more valuable than it would be if they did not own it. Similarly, once people are endowed with a right, they tend to overvalue it and react passionately when it is interfered with.

Unfortunately, Americans increasingly coddle and even reward the hypersensitive, perversely encouraging ever more hypersensitivity. In one notorious incident, a Washington, DC city official was forced to resign for using the word "niggardly" at a meeting because the word sounded like a racial epithet, even though it is actually an innocent synonym of Scandinavian origin for "miserly." It should hardly be surprising, then, that people are suing for and winning damages when they are offended by colleagues at work, when they are excluded by private clubs or turned down as roommates, or when they are fired from church-run schools after reneging on promises to obey church doctrine. Neither should it be surprising that legislatures are increasingly succumbing to the temptation to expand the laws to protect from discrimination every group with a grievance, including the vertically challenged (short people, protected in San Francisco and Michigan), the body-pierced (among those protected in various jurisdictions, including Washington, DC, that ban discrimination based on personal appearance), recovering drug addicts (protected by the federal Americans with Disabilities Act and local equivalents), and the Hell's Angels (protected, along with other motorcycle gang members, in Minnesota).

Preserving the liberalism that defines the United States, and the civil liberties that go with it, requires Americans to show a certain level of virtue, including a phlegmatic tolerance of those who intentionally or unintentionally offend and sometimes—when civil liberties are implicated—even of those who blatantly discriminate. A society that undercuts civil liberties in pursuit of the "equality" offered by a statutory right to be free from all slights, protected by draconian antidiscrimination laws, will ultimately end up empty-handed with neither equality nor civil liberties to show for its efforts. The violation of civil liberties required to achieve this kind of equality will diminish constitutional restraints on the government, while the additional power garnered by the government, introduced for noble reasons, will end up in the hands of people who use it to promote their own interests. In these days of the Oprahization of public discourse, when even presidential candidates swear that they feel the public's pain, asking Americans to display a measure of fortitude in the face of offense and discrimination is asking for a lot. But in the end, it is a small price to pay for preserving civil liberties.

Steve:
Well, it certainly makes sense that short people should have a harder time getting a job. That example really strengthened your argument.
2.23.2006 1:11am
finec:

One price of living in a free society is having to tolerate those who intentionally or unintentionally offend others. The current trend, however, is to give offended parties a legal remedy, so long as the offense can be construed as "discrimination."


The relationship between freedom of speech and freedom to discriminate in professional situations is strained. I think this is pretty clear.

It's always fun to see which cases are chosen when the task is to illustrate how silly anti-discrimination law is. Let's look at the examples that David chooses, which are cherry-picked for their ridiculousness, either real or perceived:

- "Niggardly": This case is stupid. Inference: clearly, all racial bias cases must be at least this stupid.

- Short people: Short people are funny, like Danny DeVito. Imagine a room full of midgets. Ha ha.

- Body pierced: Damn punks.

- Recovering drug addicts: See above.

etc.

I'm not alleging that David looks down on these groups; but I do think these examples are chosen at least partly for comic effect, and this ends up masking some real issues. Left aside is the possibility that anti-discrimination law as it exists in the US may be worth the perceived burden -- that without it, life would be a lot crappier for minorities in certain parts of this country.

And there is another built-in bias worth mentioning. Lawyers only see cases when things go wrong and courts are brought into the picture. They don't see all the situations where the existence of the law causes things to go right. The seeming ridiculousness of some anti-discrimination suits is not necessarily an indictment of the law.
2.23.2006 2:08am
Jeroen:
How is useful to lump in e.g. short people with drug addicts, the body pierced or Hells Angels? Subsidization will lead to more short people? Or to more short people's hurt feelings? Since the former is ridiculous, it must be the latter. So if you are a person with one of the many types of dwarfism, living with the daily issues of being little over 3 feet tall, it is actually the antidiscrimination laws that will make you feel more hurt?


Like finec before me, I do think the choice of this sequence says more than the author bargained for and actually weakens his case.
2.23.2006 4:14am
Brett Bellmore (mail):

The seeming ridiculousness of some anti-discrimination suits is not necessarily an indictment of the law.


Well, perhaps not, but the way in which anti-discrimination laws compromise individual liberty certainly is.

I've long considered it a pity that this nation went straight from legally mandated discrimination, to legally prohibited discrimination, (And is segueing back into the former...) without ever pausing to try simple freedom.
2.23.2006 6:11am
finec:

...without ever pausing to try simple freedom.


The problem is harder than that. I don't think that freedom is ever that simple... we struggle with balancing freedoms that are in direct opposition. The simple "freedom" you envision is a Utopia.
2.23.2006 7:29am
Bob Bobstein (mail):
I don't think this passage will convince anyone who doesn't already agree with you.

Antidiscrimination laws are not conferring "a statutory right to be free from all slights." The laws are intended to protect people's chances at getting and holding a job. In the US, deeply ingrained racial discrimination was not ameliorated by libertarian policies.

Merely asserting that "draconian antidiscrimination laws" will be misused to further private interests by later bad people doesn't make it so. Even laws most of us here think are unequivocally bad, like Austria's anti-Holocaust denial laws, haven't led been used to lock up the libertarians, and haven't led to a dictatorship.
2.23.2006 8:03am
volokh watcher (mail):
Preserving the liberalism that defines the United States, and the civil liberties that go with it, requires Americans to show a certain level of virtue, including a phlegmatic tolerance of those who intentionally or unintentionally offend and sometimes—when civil liberties are implicated—even of those who blatantly discriminate.


David --

I'm betting you haven't been stopped for driving while black. Or been fired after 7 years of excellent reviews because your new manager doesn't like the color of your skin or the religion you practice. I doubt you've worked in a place where nooses in your locker were a common occurence. And you probably never had an executive position for a company whose senior management, in your presence, would openly make racial or ethic jokes at your expense or talk about you job-performance in stereotypically racial terms, and compensating you below your counterparts.

finec nailed it. There's a big difference between freedom of speech and freedom to discriminate.
2.23.2006 8:18am
TechieLaw (mail):
I think you're drawing a false line between the reaction to the Muhammad cartoons and people who use the legal system to prevent offensive speech. Those who espoused a violent reaction to the cartoons couldn't care less about using the legal system in the US to help their cause. (Yes, I'm aware that some were asking for a UN resolution prohibiting speech offensive to religion. But I suspect the resolution is dead on arrival.) The media who refuse to print the cartoons in the US aren't basing that refusal on a fear that they will be hauled into a US courtroom; they're not printing them because of a fear that their journalists will be attacked or that a foreign government with less freedoms than our own will enforce its laws against them. This is most evident given that the cartoons are widely available on the internet and have been published by smaller newspapers that don't have to worry about the international element.

Personally, I don't see much of a link between totalitarian governments trying to stoke ethnic strife as a scapegoat for their own repressive regimes and PC culture in the US.
2.23.2006 8:20am
Jeek:
Tolerating the intolerable (or the intolerant) is now the definition of a "certain level of virtue"? Huh. Seems to me that willingness to accept or encourage or endorse depravity is no great indicator of virtue.
2.23.2006 8:23am
Mike BUSL07 (mail):
Discussing this in terms of freedom of speech vs. freedom to discriminate is a great way to frame this question, and I believe only underscores prof. Bernstein's point. If there is a line, the line has shifted greatly, where we are more willing to recognize discrimination.

Still, even where you are dealing with discrimination, individual freedom of the discriminator is still a serious issue. I fail to see why a private entity that doesn't want to hire short people should have its hand forced, especially (but not necessarily) if it has bona fide economic reasons.
2.23.2006 8:36am
finec:

I fail to see why a private entity that doesn't want to hire short people should have its hand forced, especially (but not necessarily) if it has bona fide economic reasons.


Mike:

How would you handle this bona fide reason: "Sorry, my biggest client detests short people."
2.23.2006 9:10am
Mike BUSL07 (mail):
I think that's a perfectly fine reason. A private entity should have the right to be an a-hole, unless there is some serious evidence that many private entities will discriminate against a particular group, effectively ostracizing the group from the economy. In other words, I think rational basis for anti-discrimination laws shouldn't be enough.
2.23.2006 9:13am
DavidBernstein (mail):
Admittedly, this is only three paragraphs of a 200 page book, so the whole argument isn't there. But is it too much to ask that the commenters at least read the three paragraphs closely before commenting. For example, the excerpt has nothing at all to say about "driving while black," unless you somehow think that prohibiting such policies affects police officers' civil liberties.

Can we also take note of the fact that this is a book excerpt, and therefore (a) not every sentence is going to be directly on point; and (b) you can assume that this is a statement of a thesis, not an entire defense of it)? With regard to the examples of the expansion of the laws I noted, heck it's from a book not about the Mohammed controversy, so it's not as closely related as the rest. But if you consider how the idea of "hate speech" has involved from banning Holocaust denial, cross-burnings and violent pornography to banning cartoons of Mohammed, one can see how laws that impinge on civil liberties are initially justified by certain concrete concerns, but then keep expanding way beyond the original rationales for the law.

Anyway, the three parapraph's overall theme is directly related to the current controversy, because the point is that one shouldn't allow the offense taken by "victims" to dictate antidiscrimination policy. And, hey, if you find the ideas expressed above sufficiently provocative to comment, you might consider going to Amazon to shell out the $6.00 required to read the whole argument.
2.23.2006 9:21am
Joshua:
So, if short people are now a protected class covered by anti-discrimination laws, does that mean Randy Newman's signature tune is now considered hate speech?
2.23.2006 9:36am
Solid State (mail):
Mike, that is certainly worth a serious discussion.

Finec's says, "Left aside is the possibility that anti-discrimination law as it exists in the US may be worth the perceived burden -- that without it, life would be a lot crappier for minorities in certain parts of this country."

Is the imposition of anti-discrimination law supposed to exist as a balance between goods for the group the law benefits versus costs on the rest of society? This seems to amount to de facto confiscation of private property (economic harms to private actors resulting from restricting their ability to act in their own interests). Is it neccessary to argue that anti-discrimination law is not effective in improving the lot of whichever group is benefited in order to oppose it? Suppose I grant finec's idea that people's lives are substantially improved by the presence of this law. I do not believe it is the role of the federal government, nor of federal law, to make unlimited utilitarian balance judgements over all property within its extent.

Bob, you mention that, "In the US, deeply ingrained racial discrimination was not ameliorated by libertarian policies." While certainly changing ingrained beliefs and attitudes was one of hopes of anti-discrimination law - I'm not convinced that this was the justification for it.

Both of these arguments seem to ignore that anti-discrimination law is supposed to exist as a remedy for legally imposed discrimination. That is, libertarian policies were supposed to be inadequete to remedy the prior harm caused by past government discrimination. Granting 'libertarian policies fail to reform repugnant attitudes held by the polity' and (2) 'laws designed to benefit group X over the remainder of the citizenry in fact work as intended' does not imply that we are therefore required to support such laws. Neither attitude reformation nor special benefits for politically positioned minority groups is a desirable role of government.

You might note that speaking of generic 'minority groups' ignores the historical reality of discrimination. I agree, which is why the actual justification for anti-discrimination law rests on it acting as 'remedy' for a prior harm. This also implies that anti-discrimination laws for the benefit of short people are lacking in justification. This belief does not require that I deny that short persons would benefit from law privileging their group.

Knowing forums I strenuously insist that I feel both empathy for short persons and the strong desire for them to able to find productive and well-paying work.
2.23.2006 9:37am
Thief (mail) (www):
An observation: No matter how much we wish it were otherwise, law will never make a perfect society. I agree with Prof. Bernstein, in fact, I think we've reached a point of diminishing returns with respect to anti-discrimination, that stamping out every last bit of discrimination of any kind among all entities public and private will simply cost too much of our liberty to think, hold, express, and act upon our opinions and beliefs. (And I say this having been a victim of discrimination myself.) Law is a very blunt instrument; if you really want to end discrimination, you have to change people's hearts. And law really can't do that; it commands behavior, and can even command speech, but it cannot command thought. As we have seen throughout the last century, even the attempt to command thought through law is the purest and most evil form of tyranny.

As the gambler's adage goes, "Put not your trust in kings and princes. Three of a kind will take them both."
2.23.2006 10:25am
Houston Lawyer:
I believe there is a large difference between constitutionally prohibited discrimination and the other categories mentioned. People should generally be free to discriminate against people who are tall, short, fat, skinny, ugly, have facial hair, don't have facial hair, have squeaky voices, have bad accents, speak improper English, etc. based upon their wants and perceived needs. Ultimate hiring decisions are often based upon the personalities of the final few candidates, all of whom are qualified to do the job offered.

We can all come up with forms of employment discrimination that we would like to prohibit because they affect us personally. But we shouldn't have to hire an attorney to vet each resume and interview to ensure compliance with such a process.
2.23.2006 10:47am
JB:
David Bernstein's general point is correct: Reward touchiness and you get more touchiness. The problem is not the laws themselves, it's the extremely generous reading they've been given in the courts, to the point of creating catch-22s for entities that want to comply.

The book, which I have read, is more or less an illustration of how American law fell down the slippery slope from salutory prohibitions (no Jim Crow) to ridiculous (wheelchair ramps in car-inaccessible hiking lodges). A bit farther down the slope, with no natural boundaries in sight, is "[insert loud group] is offended, punish the offenders regardless of law or common sense!"
2.23.2006 11:02am
Hans Bader (mail):
I generally agree with what David says above. We seem to have forgotten that, as the Supreme Court once observed, the right to contract or not contract with people of our choosing is a basic civil right. That civil right should only be limited to achieve paramount goals, such as eradicating Jim Crow and widespread racial discrimination.

But there is the issue of "civil rights" envy (analogous to Eugene's example in an earlier post of "censorship envy," in which groups like militant Muslims demand the right to censor cartoons based on the fact that European law theoretically accords other minority groups the right to suppress speech offensive to them, too).

Once the (bad) precedent is set that obese people are entitled to antidiscrimination protections, even against private employers, it's hard to deny short people at least the same amount of protection.

After all, obesity can be changed by self-discipline, while shortness cannot. Shortness is not a reflection on one's intrinsic merit or ability to perform most jobs. And it does not impose additional health care costs on the employer, like obesity does. Yet studies show that being short is a definite disadvantage if you want to be a CEO or get certain kinds of promotions.

Short men are five times more likely never to marry than men of average height. Short people of both sexes face job discrimination.

Why is it acceptable to make fun of short people but not fat people? Is it based on politically-correct double standards (because being short is an even bigger disadvantage for men than for women, whereas traditionally being obese was a bigger disadvantage for women than for men, who were, until recently, fatter on average than women)?

While I don't think that discrimination against short people has such severe consequences as to justify the extraordinary step of passing laws banning private job discrimination against them (a step which would further erode employer's remaining property and associational rights), I can understand why some localities have adopted laws protecting short people from discrimination.

And I do think that government agencies, which unlike private employers have no property rights or rights to freely contract, should be specifically banned from discriminating against short people. Government agencies should have to make hiring decisions and promotions based on merit, not height.

(Incidentally, I am 5 feet, 11 inches tall, and thus of middling height).
2.23.2006 11:16am
Duncan Frissell (mail):
I know commies like to manage every aspect of peoples lives and will use any excuse to do so but have you noticed that "favored groups" who don't much use anti-discrimination law for economic advancement (Asians) have advanced more than "favored groups" that depend on the kindness of the Feds (you know who you are).

If you encounter employment discrimination, get up off your fat ass and hire youself instead of whining. You're unlikely to discriminate against yourself.

If you're too lazy to work for a living and want to whine to the Feds when you encounter difficulties, you deserve all the problems you get. Those who don't are much more successful.

Since discrimination is such a problem how come black unemployment in the 1950s was lower than black unemployment in the '70s and '80s? And how come Asian unemployment was lower than White unemployment during the whole period?
2.23.2006 11:21am
Hans Bader (mail):
In my above post, I mention regulations barring discrimination against obese people.

The First Circuit held that the Americans with Disabilities Act (ADA) protects morbidly obese people in Cook v. Rhode Island.

I think this ruling, and others like it, are asinine. The Supreme Court has held that when a disability is correctable, it does not legally qualify as a disability covered by the ADA.

And obesity is correctable simply by the obese person's taking voluntary action to lose weight, by eating less and exercising more.

Laws should not violate employers' property rights by forcing them to hire obese people, who sometimes have difficulty performing job tasks because of their bulk, and who typically drive up employers' health care costs.
2.23.2006 11:24am
Mr Diablo:
Sure, there are probably some very stupid antidiscrimination laws like some of the ones that Prof. Bernstein listed. But for the most part, the big anti-discrimination laws are not about protecting someone's hypersensativity. Rather, they are about protection from discriminatory bosses, landlords, etc.

The implementation of these laws has been essential to the ongoing struggle to secure equality. For me, the difference goes back to the entire immutable characteristic debate everyone had in Con Law. The silly laws might help make a great anecdotal case that antidiscrimination statutes can go to far, but they ignore the effectiveness of the serious laws (and the once, present and future need).

I don't find a strong corollary to the Mohammed cartoon uproar or the anti-speech reactions by some, including at first, our own administration (acting before thinking, no doubt). The people angry about the cartoon aren't invoking legal theory to defend their actions; they're engaging in violent protest.

And I don't think that the anger and unrest is nearly as widespread as the press makes it out to be; and also this is a fine example of religious and government leaders using and promoting this kind of demonizing and irrational anger as a means of solidifying power and distracting peoples from the issues that are really affecting their lives.
2.23.2006 11:33am
AppSocRes (mail):
So let's see: If in Minnesota I discriminate against a Hells Angel for discriminating against a Negro (generally part of the organization's philosophy as far as I can determine) I am going to be in hot water. Verrry Interesting!
2.23.2006 11:52am
Tyrone Slothrop (mail) (www):
Unfortunately, Americans increasingly coddle and even reward the hypersensitive, perversely encouraging ever more hypersensitivity. In one notorious incident, a Washington, DC city official was forced to resign for using the word "niggardly" at a meeting because the word sounded like a racial epithet, even though it is actually an innocent synonym of Scandinavian origin for "miserly." It should hardly be surprising, then, that people are suing for and winning damages when they are offended by colleagues at work, when they are excluded by private clubs or turned down as roommates, or when they are fired from church-run schools after reneging on promises to obey church doctrine.

I read the first sentence here and thought, which country are we talking about? I've lived in some pretty blue places and some pretty red places. This diagnosis does not fairly describe any of them. The episode described in the second sentence was notorious exactly because it was so absurd. If one can generalize from it, the conclusion is that Washington has a disfunctional excuse for a municipal government. And while I'm sure that some people win some damages for some of the suits described in the third sentence, my experience practicing law in a pretty blue city suggests that the crazy cases are indeed the outliers, the sort of odd results you would expect in any system with so many disputes to resolve.

Just my two cents.
2.23.2006 12:43pm
David M. Nieporent (www):
finec nailed it. There's a big difference between freedom of speech and freedom to discriminate.
Well, the problem is that there isn't, at least in the brave new world of "hostile environment" discrimination. (Janice Rogers Brown was villified by the left, in fact, for trying to make such a distinction in at least one case.) In some circumstances, speech is treated as simply a form of discrimination. As several of your own examples make clear.

And there is another built-in bias worth mentioning. Lawyers only see cases when things go wrong and courts are brought into the picture. They don't see all the situations where the existence of the law causes things to go right.
This would perhaps be true if lawyers got their information solely from talking to plaintiffs with valid claims. But some lawyers actually, for instance, advise businesses on legal compliance. We see the operation of the laws on a daily basis, not just when "courts are brought into the picture."

Jeroen:
So if you are a person with one of the many types of dwarfism, living with the daily issues of being little over 3 feet tall, it is actually the antidiscrimination laws that will make you feel more hurt?
Yes, actually. They create a sense of entitlement. Assume a short/fat/bald/black person is fired from a job. Maybe he was fired because of bad performance, maybe because of a personality clash, or maybe because of "discrimination." In the libertarian world, he can sulk about it or he can move on and find another job; the former choice gets him nothing, though, so he has an incentive to choose the latter. In the world of anti-discrimination laws, he can sulk about it, move on, or sue -- but the third option only if he first convinces himself that he was fired for the discriminatory reason. So the government is providing him a financial incentive to spend the next two years or so arguing loudly that he was mistreated because of his race/size/appearance.
2.23.2006 1:25pm
Brandonks (mail) (www):
Look out you bloggers, look like you may be the next target;

Jihad Goes Cyber
2.23.2006 1:40pm
Daniel Chapman (mail):
Phase 1) Hijack all their posts.

Phase 2) ...

Phase 3) Profit!
2.23.2006 1:57pm
JB:
The connection of antidiscrimination law to the Mohammed cartoons doesn't have to do with daily practice, but with theory. The activist Imams have this idea that they can sue under discrimination law--they got that idea because of the lunatic fringe of lawsuits. That's the issue. The 90%, or whatever, of justifiable discrimination suits, doesn't matter. It could be 40% or 10%, what matters is how far the envelope has been pushed.
2.23.2006 2:01pm
DHBerger (mail):
Bernstein's kind of thinking conflates anti-discrimination laws with policies like affirmative action. Anyone is free to discriminate in private clubs or on the internet or in public speeches. The idea of these laws is that in something as fundamental to functioning in American society as employment (and to a certain extent housing), minorities should not be discriminated against on the basis of their race, religion, sexual orientation, appearance, etc. when those characteristics have NOTHING TO DO with the job for which they are being considered. This is not "getting a leg up", and it is intellectually dishonest to suggest that it is. The solution to the problem frivolous lawsuits is to write and interpret the anti-discrimination laws narrowly, not to scrap them altogether.
2.23.2006 2:07pm
David Berke:
David M. Nieporent,

I must disagree with one of your assertions; namely, that antidiscrimination laws provide a sense of entitlement. Such an assertion is virtually impossible to prove, which I will not hold against you - but merely state that perhaps an alternative possibility is more likely. However, all they provide is a remedy against a discrimination, not a sense of entitlement. I consider it far more likely that those with a sense of entitlement are more likely to come to an ex post facto decision that they were discriminated against, or at least that they deserve something for nothing.

The only way to keep such people from utilizing a remedy, no matter how silly or inappropriate, is to deny all remedies. Before antidiscrimination lawsuits they could have argued there was an employment contract, or that his employer physically abused him, or demanded sexual favors, or demanded unpaid overtime...There's no end. So, I don't find your theory particularly persuasive.

The group of people who have a sense of entitlement has existed as long as this species, and which I have never seen any evidence exists in larger numbers today than historically. So, nor will I believe, without some evidence, that antidiscrimination laws are increasing the number of people who have a sense of entitlement.

Furthermore, antidscrimination laws provide a remedy for certain types of unreasonable behavior on the theory that the benefits of providing such a remedy outweigh the restrictions on freedom of contract. Isn't it conceivable that it is better to allow some people with an overinflated sense of entitlement to waste time and money than to allow all forms of pernicious discrimination to proceed? (Notice, not discrimination against those who cannot actually perform their job.) Particularly when those same people have never previously had difficulty coming up with silly reasons to sue someone?
2.23.2006 2:17pm
Ziske68 (mail):
Joshua has the best question/comment here.
2.23.2006 2:20pm
Mike BUSL07 (mail):
David Berke:


The only way to keep such people from utilizing a remedy, no matter how silly or inappropriate, is to deny all remedies. Before antidiscrimination lawsuits they could have argued there was an employment contract, or that his employer physically abused him, or demanded sexual favors, or demanded unpaid overtime...


Your slippery slope argument is flawed. What you are saying essentially is that "unscrupulous/hypersensitive people will seek a legal remedy of whatever is available, whether or not anti-discrimination laws exist, so potential for abuse is not restricted to a-d laws."

True enough. But that's not what's at issue here. By drawing very broad a-d laws, we enshrine the hurt feelings of the hypersensitive and the machinations of the unscrupulous in our legal system. Instead of acknowledging mere potential for abuse, we would be making it a certainty.
2.23.2006 2:42pm
Curmudgeon:

. . .including the vertically challenged (short people, protected in San Francisco and Michigan). . .


What about tall people? We suffer greatly whenever we are required to travel. I demand justice.
2.23.2006 4:05pm
Truesilver (mail) (www):
I live in a relatively mixed state, though the particular City is very blue. Not that that's relevant, but it serves to give context.

On trial right now are four young men for anti-gay discrimination. Now, normally, I wouldn't object, and to a degree, I don't.

But the issue with this, is that, for the crime of verbally threatening an individual, spitting, and tearing a poster off a wall, these 4 young men face, not the standard vandalism and disorderly conduct charges. Those are legitimate charges that should be given to them regardless of the victim's nature. But these aren't the misdemeanors.

Why not, you ask?

Because we have "Hate Crime Sentence Enhancers" that protect this one individual more than it protects me, since I'm both straight, and white, and male. These 4 young men face 10 years in prison, and felony convictions, only because they chose to do what they did to a Homosexual.

If they'd done it to me, I doubt they would've been charged at all, let alone been forced to deal with the hate crime enhancers.

That's more of what this post is getting at. Sometimes laws on our books provide a statutory bonus for people with a thin skin and minority status. I don't deny that discrimination exists, but this sort of thing, creating protected classes by statute seems to me to antithetical to a free society. It creates and enforces double-standards.

That doesn't bother anyone else?
2.23.2006 4:21pm
IANAL:
I'm not coherent enough to summarize it, but I think this makes a relevant point in how we can (or should have right to) behave in regard to mutable vs. immutable characteristics.
2.23.2006 4:23pm
IANAL:
I'm a technotard, so let's try adding this link again:

this
2.23.2006 4:25pm
David Berke:
Mike BUSL07,

I'd like to see some evidence that existing law "enshrines" the feelings of the super-sensitive, or allows more unscrupulous individuals to pursue lawsuits rather than employment. Then, I would like to see you show how this is related to "overly broad" laws, rather than an unfortunate adjunct to laws of appropriate breadth. To the extent that you can show these two things, I will wholeheartedly agree with you. There are no rational people who believe that every hurt feeling and sense of entitlement should be indulged.

An additional point is that, although I perhaps did not explain this clearly, one issue I had was with Nieporent's implication that the existence of any a-d laws is a bad thing; so, while it is true that the thread in general was about the existence of overly broad anti-discrimination laws, his particular statement strongly implied that he was against the existence of any a-d laws, and if that was true, I wanted him to state it. This is why I drew the argument about needing to eliminate all such remedies; to see what his response would be.
2.23.2006 4:34pm
Mike BUSL07 (mail):
David,

I'm pretty sure it's been said in this thread already that you get more of what you subsidize. If you would like to see some evidence of our culture embracing the heckler's veto, check out www.thefire.org. There is more than enough there to waste your afternoon.

Also, and this is kind of separate, when we assess the costs of having A-D laws, we have to compare them not to what we think the world would be if there was no disincentive against prejudice, but to the free market, which in the long run and in the majority of cases, disincentivizes prejudice, which is after all an inefficiency.

With respect to your other point, I certainly agree that some kinds of discrimination should not be legal.
2.23.2006 4:48pm
finec:
David:

And there is another built-in bias worth mentioning. Lawyers only see cases when things go wrong and courts are brought into the picture. They don't see all the situations where the existence of the law causes things to go right.

This would perhaps be true if lawyers got their information solely from talking to plaintiffs with valid claims. But some lawyers actually, for instance, advise businesses on legal compliance. We see the operation of the laws on a daily basis, not just when "courts are brought into the picture."

You have a point. However, I think the broader point that lawyers' personal experience overweights the outlier cases in which disputes arise is still valid.

It is hard for anyone to measure the success of laws that never need to be enforced, or are only enforced in truly ridiculous cases. I am afraid that, if we chip away at anti-discrimination law in the name of eliminating the bizarro fringe cases, we will be reminded of why it came about in the first place.
2.23.2006 6:28pm
JB:
The neccesary fixes are:

Removing the jackpot aspect of the verdicts
Defining terms more clearly
Penalizing the frivolous
Stricter venue control
"Expert" control

The first will reduce the incidence of meritless suits, as gold-diggers will no longer deem it worth it to sue, leaving the field for the genuinely aggrieved.

The second will allow companies to create policies that satisfy the law, reducing the necessity for lawsuits, and eliminating catch-22s.

The third will further reduce the incidence of meritless suits, and lower the costs of defending against them.

The fourth will further reduce the jackpot nature in and of itself.

The fifth will remove the worst lawsuit scenarios--potentially bogus experts arguing in front of juries unequipped to understand them, who then choose based on charisma. Rather than lose the juries, regulate the experts.

All these can be done without changing the laws on the books or withdrawing protection from anyone. By bringing a degree of sanity to laws and proceedings, they would allow everyone to know what's legal and what isn't, would make it more likely that problems can be solved before litigation, and would raise the costs of bringing unjustified suits without raising the costs for justified ones.
2.23.2006 9:24pm
Visitor Again:
I don't agree with Bernstein's attack on anti-discrimiation laws, but I do want to mention one case I think went too far. I knew the defense lawyers in the case.

The Unruh Civil Rights Act in California prohibits discrimination by businesses which serve the public and provides a damages remedy for victims of such discrimination.

A group of guys wearing Nazi regalia, including Swastikas, went into the Alpine Village, a German-themed restaurant and park in Orange County owned and run by German immigrants senssitive to Germany's historical ties to Nazis, and were refused service because of their Nazi dress. They were told they would be served if they took of the Nazi regalia, which, being proud Nazis, they declined to do. They sued, with the help of the ACLU, claiming discrimination on the basis of their political views. The defendans' insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law.

This always seemed a travesty to me. Why should an anti-discrimination law convert a privately-owned restaurant into a first amendment public forum for speech many find offensive, indeed, for speech which symbolizes the worst of discrimination?

I guess the argument is that restaurants ought not to be free to refuse service to people wearig Democratic or Republican Party campaign buttons and Nazis should be treated the same way.

I can see some of you saying no one has the right not to be offended. On the other hand, surely the public should have some interest in sitting down to a relaxing meal without being reminded of the holocaust and other Nazi horrors. And surely the German owners of a German restaurant have an interest in avoiding association with Germany's Nazi past.

It's an interesting case legally because it posits free speech and anti-discrimination interests in an unusual and frustraating way. I guess black-owned soul restaurants must serve customers in full Klan regalia. Muslim restaurants must serve patrons wearing T-shirts bearing depictions of you-know-who, even if they are offensive. And the like. I tu3ww a Swastka tatoo could not readily be removed, but it could be covered.

What say you? Legal analysis most appreciated.
2.24.2006 3:11am
Visitor Again:
P.S. I believe the California courts have rejected the propiosition that the Unruh Act proscribes only discrimination based on immutable characteristics like race, religion, ethnicity and the like. So that won't fly although I think it would have done a better job of reconciling competing interests, at least in this case..
2.24.2006 3:26am
Grey (mail) (www):
Why is it that if a short person loses his job due to his employer's, uh, "business prerogative" or whatever, it's just common sense that the bloke "Stop whining and just go get another job, no problem, am I rite?". But if a business is legally compelled to, I don't know, buy a stool for those hard-to-reach shelves or extra phonebooks to sit on or something, it's apparently not whining or so-called "entitlement syndrome" to want to roll back these oppressive oppressive for their sake, since it is after all THE HUGEST HARDSHIP EVAR OH HOLKY GOD WON'T SOMEONE THINK OF TEH POOR BUSINESSES.

Okay, so sum up that syntactic abortion: Businesses (and their libertarian crusaders!) seem to be exhibiting just as much "entitlement syndrome" and woe-is-me "crap" with their incessant braying about these anti-discrimination laws as, you know, those evil people who keep getting fired.

And to MikeBUSL07, who asserts above that "the free market, which in the long run and in the majority of cases, disincentivizes prejudice," I would remind him that it only disincentivizes unpopular prejudice.
2.24.2006 9:48am
Bob Bobstein (mail):

And to MikeBUSL07, who asserts above that "the free market, which in the long run and in the majority of cases, disincentivizes prejudice," I would remind him that it only disincentivizes unpopular prejudice.


Right on, Grey. Mike, you are free to oppose anti-discrimination laws, but you have to do so with open eyes. This is where libertarianism degenerates into Panglossianism. You have to look beyond what a supply and demand curve might suggest would happen to an understanding of how humans actually behave. American historical experience indicates that discrimination can persist indefinitely until tough government action breaks it up. It's probable that Jim Crow anti-black prejudice was economically rational, too-- white people had more money, and didn't want black people around, so why wouldn't shops mistreat blacks?

Again, you're free to argue for reducing anti-discrimination laws, but I just don't see how Jim Crow-era discrimination would ever have been resolved by the free market.
2.24.2006 11:03am
Mike BUSL07 (mail):
Bob, I agree that pervasive, persistent discrimination should be made subject to legislation that bans it. But we don't live in the 1950's. If there is a good black lawyer, and firm X doesn't hire him because he is black, then he'll go to firm Y, and firm Y will have an edge. We are not talking about separate but equal here Bob - even though it's clearly an easier argument for you to make.
2.24.2006 11:49am
Bob Bobstein (mail):
Thanks, Mike. I can now read your previous statement that discrimination is economically irrational as a description of the world today. We agree that things aren't as bad as they were 50 years ago, and that "pervasive, persistent discrimination" requires government intervention.
2.24.2006 11:57am
JosephSlater (mail):
I agree with Finec fine posts.

Beyond that, the comments in this thread that share a horror of how easy it is to get courts to rule in favor of employment discrimination plaintiffs are contrary to demonstrable reality. Title VII plaintiffs lose at an almost unprecedented rate at every stage of the process. Plaintiffs must initially file with the EEOC and only about fifteen percent of the claims filed with the EEOC result in some relief being provided to plaintiffs, a rate generally lower than that for other administrative claims. Plaintiffs lose employment discrimination cases both at the trial level and on appeal at a greater rate than plaintiffs in almost literally every other type of civil case. At the pretrial stage, 98% of employment discrimination cases were decided for defendants (compare that to a success rate of 66% for defendants in insurance cases). In cases tried before judges, employment discrimination plaintiffs succeeded in 18.7 percent of the cases; in contrast, plaintiffs in insurance cases won 43.6% of the time; and plaintiffs in personal injury cases won 41.8% of the time. Employment discrimination defendants that lose at the trial level do startlingly better on appeal (winning reversal over 43% of the time) than employment discrimination plaintiffs that lose at the trial level (winning reversal on 5.85% of the time, a lower rate than any other category of cases except prisoner habeas corpus cases). See Kevin Clermont, Theodore Eisenberg, and Stewart Schwab, How Employment-Discrimination Plaintiffs Fare in the Federal Courts of Appeals, 7 Employee Rts &Employment Pol'y J. 547 (2003); Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win? 61 La. L. Rev. 555 (2001); Michael Zimmer, The New Discrimination Law.
2.24.2006 12:14pm
JosephSlater (mail):
MikeBUSL07 [and this time I *am* addressing you ;-)]

Be careful in assuming that employers generally don't discriminate any more and/or that those that do will be punished in the marketplace. Below are excerpts from a fairly recent Wall Street Journal article summarizing the findings of a couple of studies on race discrimination in hiring.
-----------------------------------------
Two young high-school graduates with similar job histories and demeanors apply in person for jobs as waiters, warehousemen or other low-skilled positions advertised in a Milwaukee newspaper. One man is white and admits to having served 18 months in prison for possession of cocaine with intent to sell. The other is black and hasn't any criminal record.

Which man is more likely to get called back?

It is surprisingly close. In a carefully crafted experiment in which college students posing as job applicants visited 350 employers, the white ex-con was called back 17% of the time and the crime-free black applicant 14%. The disadvantage carried by a young black man applying for a job as a dishwasher or a driver is equivalent to forcing a white man to carry an 18-month prison record on his back.

A recent Gallup poll asked: "Do you feel that racial minorities in this country have equal job opportunities as whites, or not?" Among whites, the answer was 55% yes and 43% no; the rest were undecided. Among blacks, the answer was 17% yes and 81% no.

In a similar experiment that got some attention last year, economists Marianne Bertrand of the University of Chicago and Sendhil Mullainathan of the Massachusetts Institute of Technology responded in writing to help- wanted ads in Chicago and Boston, using names likely to be identified by employers as white or African-American. Applicants named Greg Kelly or Emily Walsh were 50% more likely to get called for interviews than those named Jamal Jackson or Lakisha Washington, names far more common among African-Americans. Putting a white-sounding name on an application, they found, is worth as much as an extra eight years of work experience.

In the Boston and Chicago experiment, researchers tweaked some resumes to make them more appealing to employers. They added a year of work experience, some military experience, fewer periods for which no job was listed, computer skills and the like. This paid off for whites: Those with better resumes were called back for interviews 30% more than other whites. It didn't pay off for blacks: Precisely the same changes yielded only a 9% increase in callbacks. Someday Americans will be able to speak of racial discrimination in hiring in the past tense. Not yet.
2.24.2006 12:20pm
Colin:
I think Bob's point is important, Mike. Of course this isn't 1950, but pervasive bias--against ethnic and unpopular minorities--still exists. If firm (or public accommodation) X refuses to hire or serve a man because he is black, then yes, as you say, firm Y can do it. But what if the resulting economic pressure on X is insufficient to outweigh the satisfaction they get from a racist hiring or serving policy? What if all the best firms get the same satisfaction, or have to match the demands of crucial clients with discriminatory requirements?

The existence of nondiscriminatory competitors might not provide enough of a counterweight if they are too small or weak to present a threat to the discriminatory actors. That might be the case if, for example, the largest firms in a market benefit from the business of the largest client in the market who only hires firms with a whites-only policy. The nondiscriminatory nature of the competitors might not be enough to overcome a market distortion keeping the discriminatory firms on top. Or, more likely, the pressure on the discriminatory firms might progress only very slowly, with a correspondingly high human cost.

Pure economics aren't a panacea. Your arguments are very strong, of course, and I agree with them: this isn't 1950, and discrimination is much less entrenched in the market than it was; we'd have to backslide quite a bit before racism became as large a market distortion was it was at the time. Those considerations shouldn't be overlooked. But neither should human nature. It seems to me that market pressure alone cannot resolve irrational discrimination, because the actors will place substantially differing values on their actions and policies.

IANAE, so please, salt to taste.
2.24.2006 12:33pm
Andrew J. Lazarus (mail):

The book, which I have read, is more or less an illustration of how American law fell down the slippery slope from salutory prohibitions (no Jim Crow) to ridiculous (wheelchair ramps in car-inaccessible hiking lodges).

I'm having a hard time reconciling absolutist arguments above with the idea having no Jim Crow is "salutory", at least insofar as the 1964 Civil Rights Act impinged on private businesses. A slippery slope argument is a very different thing, and outside the various "hostile environment" cases (where perhaps we have gone too far down a slope), I fail to see a genuine intersection with freedom of speech issues. For one thing, campus "speech codes" don't have economic consequences. Hiring only white people does.
2.24.2006 3:06pm
JosephSlater (mail):
Andrew:

You make a good point, but I'm not sure there really is that much evidence, beyond some quasi-hysterical and highly ideological cherry-picking of atypical cases, that we've gone too far down any slope in sexual harassment cases. I used to practice in this area and I currently teach in it, and the types of facts needed to win a sexual harassment suit are, generally speaking, pretty horrifically extreme.
2.24.2006 3:18pm
BU2L (mail):
Joseph,

Too be honest, I'm surprised and disappointed by the results of those studies. I wonder to what extent the field is leveled, if one looks at high-paying white collar jobs, as opposed to waiters and dock-loaders. I'm not saying that we should dismiss the latter as a mere corollary of the former, but if this is the case - and I suspect it is - then we can at least isolate the differences that account for the disparity.

I suspect that A manager at Goldman Sachs is 9/10 a more rational value maximizer than a manager at Arby's, with respect to hiring decisions. Perhaps market forces and social pressure are enough at the higher rungs of the ladder , but apparently not at the lower ones.
2.24.2006 3:47pm
DavidBernstein (mail):
The Alpine Village story sounds like an urban legend to me, and I can't find anything on Google about it, but if someone has a cite, please send it to me at deliotb at sign aol.com
2.24.2006 3:48pm
Bob Bobstein (mail):
Much credit to Mike BUSL for coming back to the thread this far down and acknowledging that JospehSlater's facts have caused him to rethink his assessment of the extent of the problem of discrimination.
2.24.2006 4:14pm
BU2L (mail):
See, this is why I come here, the civility :)
2.24.2006 4:46pm
JosephSlater (mail):
The "civility"? Why that's the G*d-d**** stupidest ...

Seriously, when I read those studies I was taken aback too, but they are fairly routinely replicated in a variety of contexts (testers in housing markets, e.g.), even in the 21st century.

You raise an interesting question about whether these results would be replicated in more "upper level" jobs. It's hard to test, because it's harder to "fake" resumes at that point. On the one hand, we know discrimination takes place in elite circles. But is it to the same extent? If there are studies on that, I haven't seen them (which doesn't mean they don't exist ...)
2.24.2006 5:32pm
Visitor Again:
The Alpine Village story sounds like an urban legend to me, and I can't find anything on Google about it, but if someone has a cite, please send it to me at deliotb at sign aol.com

Why would it be an urban legend when I said I knew one of he defense lawyers? In fact I was called on, briefly, to consult on the case, and I attended at least one meeting at the Alpine Village in that regard. Your loss ifyou so readily discount things, although I'm sure you would put the case to bad use.

If you really want to know about the case, call the ACLU of Southern California. Or call Carol Sobel, an attorney in the LA. area, who was then with the ACLU and represented the p0laintiffs.

There is no citation because the case was not taken up on pretrial writ, apparently, and settled before trial.
2.24.2006 9:26pm
Visitor Again:
P.S. The Alpine Village case is from the mid to late 1980s. Young whippernapprrs like Bernstein may not be aware that not everything appeared on the Internet in those days. His mantra appars to be if it's not on Google it doesn't exist. A good thing the Holocaust is on there.
2.24.2006 9:38pm
DavidBernstein (mail):
V.A., if you're right, you're right, but this seems like it would have been a very controversial case and I never saw a mention of it when researching my book, there's no mention on the internet, and database search of old newspapers also doesn't mention it.
2.24.2006 9:54pm
David Berke:
Mike,

I don't know if this will get read; I've been out busy for the last 36 hours. But, I would like to address your comment regarding subsidization.

(1) I haven't seen any evidence that there's any new and additional subsidization (a somewhat loaded term, here - Economic Incentive, anyone?). You assume this without demonstration.

(2) The free market depends upon numerous assumptions not reflected in reality; people aren't rational, the system does not transmit information perfectly or instantly, and people, unlike (many) goods, are neither fungible nor easily distinguishable in quality. It could well be that even if "better" black employees are instead hired by other firms, that the difference in quality will be minimal, or low enough that a firm can make the economic decision to accept somewhat lower performance in order to achieve other goals, or to make their blatantly racist clients happy, or what have you. So long as the firm can stay in operation, whether by imperfectly serving a market (and all firms do this) with lower profitability than others, or by serving a special niche market at a higher level of profitability, it can readily continue in operation, and continue to discriminate. Any moderately prevalent discrimination can continue in this way, while lowering overall opportunity for the opposing group, with a lower market demand, such individuals are likely to earn less, perhaps encouraging the very behavior that is said to justify said discrimination. Accordingly, it seems to me that you can't simply state that discrimination is economically inefficient, and that the free market will fix that in the long run. This begs the question of why, historically, such prejudice has always been present. From my recollection of ancient(western) history, prejudice is as old as the human species. From my recollection of psychology (my undergraduate major), prejudice is a natural outgrowth of insecurity and group identification.
2.25.2006 3:54am
JB:
I'm having a hard time reconciling absolutist arguments above with the idea having no Jim Crow is "salutory", at least insofar as the 1964 Civil Rights Act impinged on private businesses.


And that's your guiding star, isn't it? Impinging on private businesses? What about the eradication of blatant, and economy-depressing, injustice? There's more to the world than private businesses being free to make less money.
2.25.2006 11:16am