Second-Guessing

Via Division of Labour, an article in the Chronicle of Higher Education brings to our attention a letter written by Peggy Mastroianni, Associate Legal Counsel at the Equal Employment Opportunity Commission, in response to a FOIA request. According to Mastroianni, employers who use an exclusively Internet-based hiring process may fall afoul of federal antidiscrimination laws if the effect is to disproportionately exclude certain protected groups.

For the time being, it's probably best not to make too much of this. This was a response to a hypothetical question, and no legal action is currently being pursued on these grounds. Nevertheless, I do think that this provides a valuable illustration of a broader problem with antidiscrimination laws.

Most libertarians oppose antidiscrimination laws because they interfere with freedom of association. That discrimination really wouldn't be much of an issue anyway is a happy coincidence, but beside the point. But for those who care about freedom of association only so far as it fails to offend their egalitarian sensibilities, this isn't enough. If antidiscrimination laws are necessary to prevent discrimination, they say, then we can't afford not to have them. And if they aren't necessary, then where's the harm in having them anyway, just to be sure?

Well, here's the harm. Businesses now have to ask the government for permission to modernize their recruitment process---and they can't even get a straight answer. Furthermore, he hiring, promotion, and salary decisions of every business in the country are subject to second-guessing by politicians, bureaucrats, lawyers, judges, and juries---none of whom know half as much about running any given business as its management does. Any disgruntled employee or disappointed job applicant who feels he's been discriminated against can sue, and the employer, right or wrong, must settle or spend a great deal of money defending itself. And even businesses that never get sued may choose to sacrifice efficiency in order to minimize the risk of groundless charges of discrimination.

Even if we assign no value to freedom of association and grant for the sake of argument that state intervention is an acceptable tool to employ in eliminating discrimination, we have to weigh against our desire to achieve this goal the very real costs incurred due to frivolous lawsuits and honest misunderstandings. At some point on the continuum, true bigotry and genuine discrimination become so rare that the cost of eliminating them through such clumsy methods as we currently employ begins to outweigh the cost of simply putting up with them. Whether or not we have reached that point is subject to debate, but too often the question is ignored altogether.

Markets are not perfect; if antidiscrimination laws are repealed, then there will be some discrimination, although market forces will tend to mitigate its effects. But utopia is not an option---government is not perfect, either, and it lacks the self-correcting feedback mechanisms of markets. If we are unwilling to tolerate any amount of discrimination, then we must be willing to pay the price in the form of destructive litigation and inefficient business practices. Those who wish to argue that this is a good trade-off to make are free to do so, but the idea that anyone but a dogmatic libertarian must acknowledge the unambiguous benefits of antidiscrimination laws is simply untenable.

Share this

"Markets are not perfect; if

"Markets are not perfect; if antidiscrimination laws are repealed, then there will be some discrimination, although market forces will tend to mitigate its effects."

I don't think market perfection necessitates the absence of discrimination. Discrimination is a highly subjective term anyway. Everyone discriminates, as evidenced in the most simple of tasks such as shopping. While most people find extreme racial, gender, and religious discrimination to be distasteful, there are many shades of acceptance within the general population. Certainly, demand exists for both the right to discriminate and freedom from discrimination.

Those who wish to argue that

Those who wish to argue that this is a good trade-off to make are free to do so, but the idea that anyone but a dogmatic libertarian must acknowledge the unambiguous benefits of antidiscrimination laws is simply untenable.

Am I "dogmatic" if I say the EEOC can't morally treat other people as its property, hence cannot enforce its dictums even if the bad effects you mention didn't happen?

These are roughly the same

These are roughly the same grounds on which Richard Epstein opposes anti-discrimination laws.

Stefan: No, but anyone who

Stefan:
No, but anyone who disagrees with you on that point will write it off as libertarian dogma. My point is that there are very good reasons to oppose the EEOC, ADA, etc. without sharing our beliefs on freedom of association and the proper role of government.

I might be out of line here,

I might be out of line here, but being able to view competing values in terms of trade-offs doesn't strike me as a strong point of progressives or conservatives. Is there any goal of either of those groups which they don't consider to have infinite value? As in, must be achieved at all costs?

That might be so Brandon

That might be so Brandon Berg, I really hadn't thought about the negative effects on business..