The Problem with Job Discrimination Legislation

Congress is considering adding gays and lesbians to the list of protected groups covered by the EEOC.  As former chairman of a group that tried to get gay marriage legalized in Arizona (at least until we were shot down by gay rights groups that did not want libertarians or Republicans  helping to lead the effort), I hope I don't have to prove that I have no problem with differences in sexual orientation.  But I have a big problem with Federal employment discrimination law.

If you are unfamiliar with how it works, this is perhaps how you THINK it works:  An employee, who has been mistreated in a company based on clear prejudice for his or her race / gender / sexual orientation, etc. has tried to bring the problem to management's attention.  With no success via internal grievance processes, the employee turns finally to the government for help.

Ha!  If this were how it worked, I would have no problem with the law.  In reality, this is how it works:  Suddenly, as owner of the company, one finds a lawsuit or EEOC complain in his lap, generally with absolutely no warning.  In the few cases we have seen in our company, the employee never told anyone in the company about the alleged harassment, never gave me or management a chance to fix it, despite very clear policies in our employee's manuals that we don't tolerate such behavior and outlining methods for getting help.  There is nothing in EEO law that requires an employee to try to get the problem fixed via internal processes.

As a result, our company can be financially liable for allowing a discriminatory situation to exist that we could not have known about, because it happened in a one-on-one conversations and the alleged victim never reported it.

What I want is a reasonable chance to fix problems, get rid of bad supervisors, etc.  A reasonable anti-discrimination law would say that companies have to have a grievance process with such and such specifications, and that no one may sue until they have exhausted the grievance process or when there is no conforming grievance process.  If I don't fix the problem and give the employee a safe work environment, then a suit is appropriate.  The difference between this reasonable goal and the system we actually have is lawyers.  Lawyers do not want the problem to be fixed.  Lawyers want the problem to be as bad as possible and completely hidden from management so there is no chance it can be fixed before they can file a lucrative lawsuit.

I worry in particular about how this will play out with a new gay/lesbian discrimination law.  We have employed a number of gay couples over the years, and never had any particular internal issue  (I had to defend one couple in Florida from a set of customers who thought that it was inherently dangerous to employ gay people around children camping, but I did so gladly).  But I know I have employees who have religious beliefs different form my own such that they think gay people are damned, evil, whatever.  So now what do I do when I have one of these religious folks in conflict with an employee who is gay?  If I don't separate them, I am going to get sued by the gay person for a hostile work environment.  If I move the gay person, I will get sued for gay discrimination.  If I move or fire the religious person, I will get sued for religious discrimination.

I am happy to work hard to build a respectful, safe work environment, but such laws put me as a business owner in no-win situations.  And the lawyers who craft this stuff consider this a feature, not a bug.  Heads I sue you, tails I sue you.


  1. Username456:

    re: how it really works. Another tactic I've seen quite a bit -- employee knows he or she is about to be fired for poor performance, files an EEOC suit => keeps job at least until EEOC suit resolved, years later, often with no responsibilities but full pay.

  2. oneteam:

    That's why right to work laws are so crucial to a free market economy. (I know it's not a panacea, but it does help, tremendously. Especially if the employer has documented things quite well.)

  3. Twice Guessing:

    The answer to your question: "So now what do I do when I have one of these religious folks in conflict with an employee who is gay?" is obvious: You don't employee any of these "religious folks". After all that is the point of these types of laws such as discrimination laws, hate crime laws, etc. that make it a crime to think for yourself. Those that push these laws hate God and all those who love Him. They are like those who plotted against the prophet Daniel. Those people convinced the king to pass a decree that outlawed praying to anyone but the king knowing that Daniel would have to break the law or compromise his religious beliefs. These people who push this type of law have the same thing in mind - they will use the government to force people to belief what they say is right by making laws that make it a crime to think differently.

  4. gattsuru:

    Right-to-work only has to do with union contracts (specifically, contracts requiring all employees to pay union dues); it doesn't impact or have any relevance in this situation one way or the other.

  5. oneteam:

    I actually used the wrong term. I meant the law that allow an employer to fire someone if they want, with or without cause. I can't remember the exact terminology, but that's what I was referring to.

  6. gattsuru:

    That's "at-will" employment.

  7. frankania:

    When I ran my electronics business in Mississippi, I finally fired my employees and contracted them back as "sub-contractors"
    after dealing with too much bureaucratic rules and paperwork and tax withholding, etc. etc..
    No problems after that.

  8. glenn.griffin3:

    I'm pretty sure not employing "religious folks" is a form of employment discrimination. In addition, not employing religious people would greatly reduce your applicant pool of honest, hardworking, folks ... partly because "religious folks" tend to be older, more mature, and more suited to long quiet hours working in secluded locations.

    Can you carefully rethink your argument, as it might apply to a real workplace in the real world? Please?

  9. glenn.griffin3:

    I know in Florida the trend is to randomly declare that contractors don't meet the definition of contractors, and thus need to be paid assorted moneys they deserved as "employees" by regulatory ruling. Often years after the employment in question. Somehow, the balance of money always favors the former "contractor" and his lawyer. I'll try to dig up some links.

  10. nehemiah:

    The answer Warren is for you and your management team to start cross-dressing. That would defuse any complaint of the type you fear. If you can't beat them.......

  11. tex:

    At Will (read your correction) does not avoid Federal discrimination suits. Guilt or innocence doesn't matter too much either cuz they sue asking for, say $5K and it would cost $50-100K to defend, so usually business just hands over the ransom, sometimes at the insistence of their insurance company.

  12. jdgalt:

    The law doesn't work especially well even from the view of an employee who thinks he's a victim. The problem is that most kinds of alleged discrimination are simply impossible to prove.

    A few cases of real skin-color or gender bias have been solved by imposing quotas (although those also create real and serious injustice the other way, by making anybody who calls out a black or woman for bad behavior presumptively guilty of bias -- and the notion of "disparate impact", if enacted, will lock in that problem forever). But when bias of some less-obvious type, such as age discrimination, is asserted, the plaintiff can count on losing even if his case has merit. He simply can't prove it unless the boss has said something really stupid in front of witnesses.

    I see only one way laws of this kind can be made to work, and it is probably "worse than the disease." That is to replace present law (where you can fire someone for any reason you like except a few, banned reasons) with a law specifying a short list of legal reasons for firing, and banning all others. Then every time you fire someone, you'd have to prove (at a hearing) that you had proper cause.

    This is not far fetched. Many US cities already have "renters rights" laws that work this way (substitute "evict" for "fire"). Frankly, I'm surprised that the President hasn't already proposed it.

  13. mesocyclone:

    I'm surprised you didn't raise the issue of free association. Why would a Libertarian support any kind of anti-discrimination law - as you appear to above?

  14. perlhaqr:

    CA pulls that trick, too.

  15. danimal15:

    Great post. Agree.