Undiscriminating discrimination

...Employers are damned if they do, damned if they don't when workers engage in sexual behavior on the job...

...The logic of quotas is so strong that the EEOC imposed them in the very first case it ever brought, against American Container Corp...

...It's less and less true that the defendants in anti-discrimination actions are behaving irrationally, sacrificing material welfare to raw prejudice...

...As recently as 1990, nearly half of the cases the Equal Employment Opportunity Commission decided to pursue involved allegations of racial discrimination...

...But while the flurry of "downsizing" exposed all sorts of public and private problems, it takes quite an imaginative leap to analogize it to the maltreatment American blacks have suffered, or to propose that the remedies appropriate for racial prejudice ought to be used against firms that were acting not out of unthinking prejudice, but on the basis of precise and unemotional calculation...

...Meanwhile, the urgent, pressing concerns of women in the work force—a tax code that does not disfavor care of one's own children, labor rules that ease working from home and that do not threaten employers with penalties if they offer flexible working hours, tax rates that do not confiscate the gains from creating a successful business of one's own—are scanted...

...Then, with grim warnings that VMI must recognize the differences between men and women, the Department of Justice arrogated to itself the job of inspecting and revising VMI's curriculum and code of discipline...

...they feel a highly unsuperstitious dread of the cost of accommodating those handicapped bodies...

...Never have the business practices of Americans been more intensely regulated...

...For the most part, Americans aren't pillagers...

...A bigot is a person whose harsh prejudices blind him to the facts...

...What this means is that the typical discrimination plaintiff is rapidly ceasing to be an otherwise qualified black person denied a job or a promotion because of his race...

...There is something hugely unreal about this...

...The employer who turned away a qualified black applicant, the landlord who shut the door on a black tenant, the motel keeper who denied a tired black couple a bed for the night were not just behaving reprehensibly...

...An influential group led by Sen...

...Their codes of law shouldn't regard them as if they were...

...First, with stirring rhetoric about the essential sameness of men and women, Justice Ginsburg outlawed single-sex higher education...

...Each of these people may have suffered a very real harm and may even be the victim of a very real injustice...

...If what American society has done so far in the name of fairness is not enough, one is entitled to wonder: What on earth would be enough...

...In his murky but portentous decision on a Colorado referendum banning special treatment for homosexuals, Justice Anthony Kennedy announced to the world the birth of a new category for anti-discrimination purposes: sexual orientation...

...If someone at Smith University feels he has unfairly been denied admission to business school, we can check the sex and race of the graduate students...

...But who knows why he really picked one over the other...

...As the concept of nondiscrimination grew and grew and grew, as it took on new categories of grievance far removed from race prejudice, it became wobblier and wobblier...

...The 1991 law was the first time Congress offered a solid legal justification for racial preferences in employment...

...By 1995, that proportion had dropped to one-third...

...Men and women cannot...

...She's a clerk at a plant who believes she was fired because she had complained to management about the pin-ups on the men's lockers...

...We don't normally tell people whom they must do business with, whom they must admit to their schools and clubs, whom they cannot deny a seat at a diner or a summer membership at the local swimming pool...

...And those managers are right to be terrified...

...All they're doing is responding to the fact that some employees cost more than others—they have more medical expenses, they have accumulated more vacation days, they must be paid more, and so on...

...Theoretically, it should be possible to avoid discrimination without resorting to quotas...

...The mass firings of mid-level executives that dominated the business pages through the early 1990s were troubling casualties of an economy in distress...

...Private lawsuits have proliferated since 1991...

...But it is not prejudice, or bias, or bigotry, or any of the other names our law encourages us to attach to it...

...Justice Ruth Bader Gins-burg has pushed the judiciary into a bold new stance on sex discrimination: Her opinion in the Virginia Military Institute case unapologetically resurrected the defeated Equal Rights Amendment of the 1970s and inscribed it into the Fourteenth Amendment...

...There ought to be a better way...

...But American law has wandered down dead ends before...

...So anti-discrimination law oscillates between an unprincipled insistence that men and women be treated alike when sameness serves feminist ideals and that women be treated preferentially when sameness does not...

...And things are only going to get more illogical...

...It took until 1938, but eventually the whole bizarre structure collapsed...

...Though we can never know the true reason for any economic decision, there is something we can do: We can count the number of men, women, Hispanics, and blacks in Smith's work force and among his contractors...

...But it is also true that American blacks in those days faced something very different from individual rejection in millions of separate little transactions...

...The language and theory of "nondiscrimination" is at best a nuisance, at worst an active hindrance, in figuring out what those standards should be...

...If the ideal of anti-discrimination means anything, it means being judged as an individual, not as a stereotyped member of a group...

...in 1972...

...Through the Reagan 1980s, the Equal Employment Opportunity Commission investigated a relatively steady number of complaints, between 110,000 and 120,000 a year...

...Or, if you wanted to put the case in even fancier terms, antidiscrimination laws could be seen as a continuation of the great Enlightenment project: using the power of the state to sweep away antiquated and unreasonable passions in order to promote the commonwealth's material well-being...

...it was bad for the whites who imposed it...

...And like a cartel, the white boycott was not only bad for the blacks who suffered from it...

...They have felt obliged to do so because, under the present legal rules, once a prima facie case of discrimination has been made, the onus of proof shifts to the defendant, and it's hard to prove the absence of an improper motive...

...It might be true, as the southern senators who filibustered the 1964 act warned, that anti-discrimination laws abridged the right of private choice...

...The difference was the product of the system known as the "federal common law," elaborated by lawyers and judges over a century of now-forgotten cases...

...Consider age discrimination...

...Constitution a proscription against ever acknowledging the special burdens that women bear...

...They would gain access to good workers, tenants, and customers on whom they had turned their backs for unthinking, primitive reasons...

...He's an immigrant from Honduras angry because he was asked for proof of citizenship at a job interview while people who spoke accentless English were not...

...Nor have the courts been dormant, despite their increasing suspicion of quota schemes in the job market and higher education...

...Since 1989, the EEOC has really gone to work: It looked into 130,000 cases in 1990, 150,000 in 1993, and 165,000 in 1995...

...But when an insurance company tries to treat you as an individual, by finding out medical information that will enable it to more precisely calibrate a premium to the risks you pose, it is soon likely to find itself convicted of "genetic discrimination...

...A high school that wants to outfit a girls-only field hockey team, a hotel that wants to preserve its old grand staircases, a struggling firm that can no longer afford the skyrocketing health-insurance premiums of its older workers—all these are liable to be treated as if they were a bunch of Bull Connors siccing the dogs on peaceful demonstrators...

...When Employer Smith said that all job applicants for his stockroom needed to be able to lift a 200-pound weight, did he really care about the weight—or was he secretly trying to screen out women and the disabled...

...It might be very wrong of them to treat their selfish profit and loss as more important than the social gains from employing the disabled...

...Obviously that's pretty thin comfort to the former middle manager clutching a pink slip...

...Those same employers, landlords, hotel keepers, and so on would be much better off for having their freedom reduced...

...The civil rights struggle was the legal profession's finest hour, and it adamantly refuses to accept that the struggle is over...

...As employers attempt to invent new ways of work to accommodate women with children—such as mommy tracks and shorter work weeks at lower pay— every innovation will have to be reviewed by a feminist federal judiciary that has now written into the U.S...

...But the Pentagon throbs with almost Athenian creativity compared with lawyers, legal intellectuals, and judges...

...And that gave proponents of civil rights laws a very powerful argument...

...The supreme court of Hawaii seems inclined to take Kennedy's hint and condemn the institution of marriage as a form of sex discrimination...

...Third, it's hard to imagine a less appropriate field for anti-discrimination law than the controversial area of "sexual orientation...

...In the past eight years, Congress has enacted three major anti-discrimination statutes: the Civil Rights Restoration Act of 1988, the Americans with Disabilities Act of 1990, and the Civil Rights Act of 1991...

...The Virginia Military Institute case exemplifies the law's absurdities as well as anything...

...Second, putting the disabled to work entails real costs, and it's unfair to ask particular employers and landlords to bear large portions of those costs while others escape altogether...

...Defenders of America's vast anti-discrimination apparatus would like you to think so...

...Federal anti-discrimination law has never been more zealously enforced than it is today...

...When employers choose to lay off older workers first, they aren't acting out of some unthinking prejudice against the elderly: The hatchet men making the decision are often over 45 themselves...

...Perhaps it would be a good idea to levy a special tax on every employer in the country and use the money to create physically less taxing work for workers who have injured themselves on the job...

...But surely the reluctance of individual employers to invent unneeded work in order to accommodate no-longer-able-bodied employees cannot be intelligently understood as an expression of "discrimination...

...As more and more states and localities add "sexual orientation" to their list of prohibited grounds of discrimination, the authorities will find themselves punishing people not just for irrational prejudices, but for acting on their First-Amendment-protected religious convictions...

...he's being let go because he's expensive...

...She's a young lawyer who contends that her firm's requirement of a 2,500-hour year from aspiring partners constitutes a disguised barrier to the promotion of women...

...The employers being sued in disability-rights cases don't feel a superstitious dread of handicapped or disfigured bodies...

...The undiscriminating expansion of anti-discrimination statutes is due to one key force: the American legal profession...

...All must pick up their share of the load—meaning that we should be considering subsidies to employers of disabled workers, with the expense borne by some more general form of business tax...

...In the name of anti-discrimination, what we are really doing is imposing crushing and arbitrary taxes on randomly selected employers, landlords, and other unmalicious businessmen...

...More and more often, Americans find themselves on the wrong side of the law not because they acted in a prejudiced and irrational way, but because they behaved in a way any economist would regard as perfectly reasonable: They hired the employee who didn't need $50,000 worth of access ramps and elevators, they retained the advertising firm whose executives spoke the most fluent English, they granted the partnership to the associate who didn't ask for time off to give birth...

...For the most part, they aren't bigots either...

...it also opened up lucrative opportunities for anti-discrimination lawsuits...

...If anti-discrimination laws constricted individual choice and freedom, it could have been said, so did laws compelling attendance at school...

...The system kept producing perverse results, and ever more ingenuity had to be summoned up to make sense of it...

...And like school attendance, anti-discrimination laws were a form of compulsion that might be resented at the time, but would be appreciated later by an older, wiser self...

...As Americans opt for a harder line on illegal immigration, employers conscientiously attempting to obey one law—by, for example, double-checking the validity of the documents presented by workers who don't speak English well—will sooner or later be hauled into court for violating another...

...They confronted a mass boycott by the white majority, operating something very like a cartel in the business world...

...Instead, he's a 55-year-old engineer who lost his $85,000-a-year job and his health insurance when his company was sold...

...The people who find themselves on the wrong side of the anti-discrimination police nowadays are seldom bigots in that plain sense of the term...

...but Wal-Mart discovered that an employer can be sued for invasion of privacy when it proscribes sexual advances that turn out to be welcome...

...Governments, universities, and private employers all would benefit from a new, clear, and non-contradictory set of standards for meeting the special needs, responsibilities, and vulnerabilities of women in public...

...The fact that these men found it so difficult to retain their health insurance was a sign of an important public-policy failure...

...One would like to see society work its way toward a compromise based on tolerance on the part of the majority and discretion on the part of the minority...

...An employer can be sued for complicity in sexual harassment if it does not punish workers for unwanted sexual advances...

...Many in Congress want to go farther still...

...Finally, of all the various subtypes of anti-discrimination law, it is the attempt to eradicate sex discrimination that has departed most ludicrously from fairness and good sense...

...In every way that is a legitimate concern of government, employers, educators and so on, whites and blacks can be treated as identical...

...But to judge by the gibbering terror on the faces of Texaco's top management after a few executives were caught on tape saying ambiguously negative things about blacks in the workplace, corporate America does not feel quite as liberated as CCRI's opponents fear...

...Or consider our sample case of disability discrimi-nation—the one in which the meatpacker with a bad back demands a desk job...

...Sixty years ago, a pedestrian hit by a streetcar found himself facing an entirely different set of legal rules from a pedestrian hit by a train...

...Looking at the vast nexus of anti-discrimination law, it's natural to succumb to defeatism and resignation: Nothing so bureaucratic and colossal could ever be brought to an end, no matter how illogical and counterproductive it has become...

...It wants to replay the struggle again and again, substituting (ever more improbably) women, the disabled, and middle-aged executives in the role that once belonged to blacks...

...But look at such incidents closely and you see a big—and very disturbing—difference between these new-style anti-discrimination claims and the old...

...Never have the incentives for private litigation glittered more alluringly...

...Texa-co's $176 million settlement with six black plaintiffs set an astonishing new record...

...They were behaving foolishly...

...If the trends of the past five years continue for five years more, the proportion of race cases in the EEOC docket will have dropped to 25 percent by the year 2000—less than either sex or disability...

...The older worker isn't being let go because he's old...

...Dianne Feinstein of California wants to prohibit what it terms "genetic discrimination": the possibility that insurance companies might someday charge higher premiums to individuals with a genetic predisposition to certain illnesses...

...Nothing is better calculated to wreck such a compromise than a heedless judicial and bureaucratic attack on America's traditional moral and religious norms...

...At the end of the last session, 49 senators voted in favor of a law that would have extended federal anti-discrimination protection to homosexuals...

...We hear a great deal about the Pentagon's unwillingness to abandon the obsolete paradigms of the Cold War...

...Rather than fitting the difficult labor problems of a post-industrial society into the legal categories bequeathed to us by the fight against Jim Crow, we should start afresh and speak the truth...

...The federal bureaucracy has worked even more busily than Congress in pursuit of its ideals of fairness...

...Never has the government threatened malefactors with such heavy punishments...

...The special odium of the accusation of discrimination should be reserved for the most serious form of discrimination— the sort of bigotry known as racism, a bigotry that is very far from extirpated...

...But as the ideal of nondiscrimination has expanded beyond its original category of race to new domains—sex, age, disability, national origin, sexual orientation, and whatever comes next—it has taken on a new, and quite opposite, meaning from the one propounded by its early and courageous advocates...

...First, age discrimination is really about the malfunctioning of the health-insurance market, and the sad side effects of paying people by seniority rather than by performance...

...The original civil rights vision understood discrimination to be a fundamentally irrational act that sprang out of passion and prejudice...

...Contemporary advocates of "corporate diversity" still make something like that case today...

...They are people who are being asked to pay a higher wage bill, or to widen the doorways of their hotel, or to rearrange a new mother's hours of work...

...Unsurprisingly, in the hope of defending themselves against lawsuits, American employers have resorted to race and sex quotas...

...The celebrities, activists, lawyers, diversity consultants, university administrators, and corporate bureaucrats who campaigned against the California Civil Rights Initiative profess to regard their defeat as a step backward toward resegregation, if not white supremacy...

...Defenders of the old federal common law worried that without it, states would plunder and pillage out-of-state corporations...

...He's a former employee at a meatpacking plant who hurt his back, exhausted his worker's comp, and now wants his old boss to find him a desk job...

...It long ago began to ring false...

...Their resistance to those demands emerges not from blindness, but from a very clear-eyed awareness of costs...

...And when he hired Jack over Jill, he may have said it was because Jack arrived early to the interview and Jill was late...

...Deal with those two issues, and the incentives for favoring the young over the middle-aged would fade away...

...It might make sense to delete "sex," "age," "disability," and other such categories from federal and state anti-discrimination statutes and confine these laws' application to race and race alone...

...Those fears weren't groundless—look at today's tort system—but they were on the whole misplaced...