Why Opposition to Workplace Discrimination Laws Doesn't Necessarily Make You a Racist

A while back I (for a short time) chaired an effort to get a ballot initiative in Arizona to change to Constitution to allow gay marriage.  In the process, gay rights advocates approached me for support of another law to add LGBT persons to the list of protected classes that are covered by workplace discrimination laws.

I refused to help, and these folks immediately labeled me a hypocrite.  To be fair to them, they honestly thought that workplace discrimination laws did exactly what they intended to do - ban workplace discrimination of an overt sort (e.g., "what, you're gay?  Well, you can't work around here any more").  But anti-discrimination law has a lot of other unintended consequences that are all bad for even the most fair-minded business owner.

Because most of the actual stories I have been through are (and should be) confidential, I will illustrate the problem from a story out of the national news.

Debbie Wasserman Schultz is Chair of the Democratic Party.  Several years ago various party members became dissatisfied with her leadership, a pretty normal occurrence for such a position, particularly after Congressional losses in several elections.  I compare the job to that of an NFL coach, who has job security only as long as he is winning (see: Jim Harbaugh in San Francisco).

Wasserman Schultz’s position as the head of the DNC has long been a source of contention among Democrats, and Politico has previously documented the issue. In September 2014, Wasserman Schultz’s gaffes caught up to her when a string of Democrats voiced their distaste for the way the Florida congresswoman had led the party.

That report found tension between Wasserman Schultz and Obama dating back to 2011 .... At the time, Wasserman Schultz had allegedly complained to Obama about not being able to hire a donor’s daughter to work for her at the DNC.

“Obama summed up his reaction to staff afterward: ‘Really?’ ” according to a source that was present.

So maybe Obama didn’t like Wasserman Schultz’s brashness or her propensity to spout gaffe after gaffe.

So, faced with threats of losing her position based on poor job performance, her response was this:

Democratic National Committee Chairwoman Debbie Wasserman Schultz was prepared to go full force against President Obama if he tried to replace her in 2013.

Wasserman Schultz, according to Politico, was going to accuse Obama of being anti-woman and anti-Semitic — apparently to cover all the bases — if he dared consider replacing her as chairwoman.

There is absolutely no rational reason to believe President Obama wanted to fire her because she was a woman.  Seriously, Valerie Jarrett practically runs the country but Obama doesn't like Shultz because she is a woman?  I would bet that in fact she was hired for the position in large part because she was a woman.  But she was perfectly willing to use the fact that she happened to be in some protected employment classes to try to head off a merit-based firing.

For businesses, this means two things

  1. It typically takes much longer to terminate someone in a protected class, because businesses want to make sure they have an absolutely iron-clad case if the termination is later challenged.  For a service business like ours, this sometimes means tolerating dangerous behavior or really bad customer service longer (with all the risks that entails) from someone in a protected group rather than from, say, a white male.
  2. A large number of employees in protected groups will file grievances to the state, or even sue, over even the most well-documented and justified termination.  Even when employers win such cases, each one take tens of thousands of dollars in legal fees to win.  As interpreted by courts and state civil rights agencies, anti-discrimination law seems to create burden of proof on the part of employers to prove they did nothing wrong, rather than the other way around.


  1. Jim A:

    You are still a hypocrite, anti-woman and anti-gay. Sorry. You are a white male so that is just assumed.

  2. jimcraq:

    "A large number of employees in protected groups will file grievances to
    the state, or even sue, over even the most well-documented and justified

    Hey, I've got an idea! Just don't hire any. Let's see how that works out. ;-0

  3. jimcraq:

    Ellen Pao, 45, has accused venture capital firm Kleiner, Perkins,
    Caulfield & Byers of firing her after she complained of
    discrimination...."This case is a wakeup call," said longtime Stanford University law professor Deborah Rhode, who teaches gender equity law. "The case has sparked a much-needed debate about gender inequality regardless of its merit."

    Regardless of its merit, certain parties are happy to see these cases go forward.

    "For some reason, there's always some team controversy swirling around Ellen," one of her annual reviews stated, according to a court filing by the firm. "At any moment in time, Ellen is not getting along with someone."

  4. lelnet:

    3. A rational business owner or manager will hunt long and hard to find ANY PLAUSIBLE EXCUSE to avoid hiring a member of a legally protected class in the first place, as hiring decisions are subject to a much less intrusive level of scrutiny (and much easier standard of defense) than firing decisions are, when they're challenged at all...which also happens much less often.

  5. Matthew Slyfield:

    "I compare the job to that of an NFL coach, who has job security only as long as he is winning."

    Just an note, Ray Rhodes who was head coach of the Green Bay Packers for exactly one season (Right after
    Mike Holmgren quit) is the only NFL head coach to ever be fired with a non-losing (The packers went 8-8 that season) record. Ray Rhodes is black.

  6. Not Sure:

    The Packers went to the playoffs for each of the six seasons prior to Ray Rhodes becoming head coach and didn't make the playoffs the year he was the head coach. Do you suppose that might have something to do with his longevity?

  7. Matthew Slyfield:

    Since he is the only head coach in the entire history of the NFL to be fired on a non-losing record, No, I don't.

  8. Not Sure:

    Ok then. So why do you think he was fired?

  9. Andrew_M_Garland:

    There is a mystery. Activists paint business owners as cutthroat pirates who would fire their grandmothers if it would save a dollar. Supposedly, these owners routinely sacrifice their morality and personal preferences to make a buck.

    But, they supposedly also pay men 1/3rd more than women ($1 vs $.75) to do jobs that the woman could do just as well. These grasping, selfish managers supposedly fire women and people of protected classes just because they don't like them, people who they have already hired.

    Others have observed that this Lefty attitude may accurately reflect the world of public employment in their direct experience. People are often hired and fired because of political connections and blackmail rather than their efficiency on the job. They think this is true everywhere.

    How could DWS's threat have any power? It may be true that Obama is anti- women and semite, other than his closest allies. Or while untrue, maybe the average Dem can be relied on to react badly just to the accusation, as they have been trained to do.

    It is beyond parody that Dems could throw around those accusations internally. How can she keep her job after this story has become known?

  10. Matthew Slyfield:

    He was the first black head coach for Green Bay and was the first head coach in the entire NFL to be fired after a non-losing season. 1+1=2.

    There were also a lot of vocal complaints over his hiring that had significant racial overtones.

  11. Not Sure:

    So hiring someone because they're black is okay but firing them because they're black isn't?

  12. Matthew Slyfield:

    No, he was hired because he was the offensive line coach under Mike Holmgren and he was popular with the players.

    Unfortunately he wasn't popular with the fans and the Packers are publicly owned mostly by fans, so he got the short end of the stick at the end of his first season. I do not believe that he would have been fired after an 8-8 first season if he had been white.

  13. kidmugsy:

    I once knew an academic department which had, on the quiet, the policy of hiring women academics only if they seemed to be far better than the average hire. That was on the grounds that if they should hire a dud woman there would be no getting rid of her.

  14. Jess1:

    Dennis Erickson would like to say "heh"...

  15. Matthew Slyfield:

    Interesting. The local news media in Wisconsin at the time Ray Rhodes was fired was saying he was the first head coach fired on a non-losing season. However, Dennis Erickson was not fired after his first season as an NFL head coach and from the way his Wikipedia page reads, he was likely fired over the outcome of a single game, more so than his record for the season.

  16. Matthew Slyfield:

    One more comment on this, Ray Rhodes successor as Packers head coach, Mike Sherman who is white, ended his first season as Packers head coach 9-7 and also missed the playoffs, but he ended up lasting 6 seasons with the packers. More evidence that Ray Rhodes' firing after one season had little to do with the fact that he didn't make the playoffs.

  17. Jess1:

    You said: "the first head coach in the entire NFL to be fired after a non-losing season"
    Your statement is false.

  18. Gdn:

    I don't think that is right. Marty Schottenheimer was 8-8 in his only year with the Redskins and was fired at the end of the season.

  19. Not Sure:

    Ok- we're making headway. So, on the Packers, the players do the hiring and the fans, the firing? An interesting arrangement, to be sure.

  20. Matthew Slyfield:

    No, the general manager does the hiring and firing. Rhodes popularity with the players was just one of the criteria that the general manager used to make the the hiring decision.

    As to the firing: The Green Bay Packers are a publicly owned (though not publicly traded, shares can be bought only from the Packers and only sold back to the Packers) non-profit corporation. Originally, you had to be a resident of Green Bay, Wisconsin to own shares, but that has been broadened over the years, first opening it to all Wisconsin residents and eventually removing all residency restrictions. Most of the shares are in the hands of the fans. These are actual voting shares and they have taken to holding their shareholder meetings at Lambeau Field.

    The general manager makes all of the direct hiring and firing decisions, but he can't simply ignore it if a decision he makes is significantly unpopular with the fans, because ultimately the fans/shareholders can fire and replace the general manager.

  21. Not Sure:

    So the fans didn't have a problem with Rhodes when he was the offensive line coach, but did when he was the head coach? Because he's black? I suppose anything's possible.

  22. Matthew Slyfield:

    When Mike Holmgren was head coach of the Green Bay Packers, he was the primary designer of the play books and he personally called all the offensive and defensive plays during actual games. The Packers line coaches had almost no public visibility.

    I doubt more than half the fans had any idea what Rhodes looked like before he was promoted to head coach.

    And for those among the opponents of Rhodes being hired as head coach on largely racist grounds who did know he was black before he was promoted to head coach, they likely saw Rhodes as little more than an assistant to Holmgren. They didn't complain about him being offensive line coach because they saw him as largely irrelevant.