Comments on: Why Would Anybody in Their Right Mind . . .

By: Ian Ayres

Ian Ayres — Mon, 06 Jun 2005 21:08:08 +0000

KL, Would you also opt out of race discrimination law if Congress gave you the option?

By: KL

KL — Sat, 04 Jun 2005 16:30:21 +0000

The real problem with "the promise not to discriminate" is that it's really hard to prove that a dismissal/demotion/etc. decision was not based on discriminatory grounds. I personally would never discriminate on typical race/gender/religion/age grounds. But can I be absolutely sure that, if I have to dismiss my secretary for sloppiness, unreliability, or poor judgement, she won't claim that I did it because of her age or race? In the real world of employment litigation (rather than a hypothetical world of legal academics), separating proper grounds from improper is very tough. I want to keep the freedom to dismiss employees who have poor judgement and promote employees who demonstrate talent and effort that are so hard to put in numbers and prove to the judge. This is the sole reason for why I would never sign up for the Fair Employment licence. Never.

By: David Woycechowsky

David Woycechowsky — Thu, 02 Jun 2005 19:52:07 +0000

Actuarial work-ups that insurance companies use? Don't have them. Nobody does. That is how I know that their true "mark-ups" involve so many orders of magnitude. Well, that and the tiny number of insurers in any given insurance "market."

By: Aaron Mandel

Aaron Mandel — Thu, 02 Jun 2005 19:00:16 +0000

What on earth does it mean for a law to be in "a state of hypocritical disrepair"? Can any law be invalidated by the existence of a single person that supports it being a hypocrite?

There will always be people who scoff at laws because they have the power to avoid serious consequences. Their existence doesn't make the law pointless; is the Constitution made worthless every time some city enacts a law later found unconstitutional?

In any case, this is a side issue. David, do you have numbers on the cost of gender anti-discrimination law to employers, especially the markup on costs added by insurance companies? I know some business claim it's a burden and others claim it's absolutely not one, and I don't think I've seen a discussion of what the objective truth is.

By: David Woycechowsky

David Woycechowsky — Thu, 02 Jun 2005 16:41:37 +0000

Why would one have to meet these tests you propose. If the employment anti-discrimination law has fallen into a state of hypocritical disrepair, then here's what you do (*in order*): (1) fix the hypocrisy; and (2) only then expand the protections.

If the protections are expanded first, then why would the hypocrites ever recognize, acknowledge and apologize for the disrespect thereby implicitly shown for Clinton's employees who were not blowing him. I think we fix the hypocrisy first and only then enbiggen the tent.

By: Aaron Mandel

Aaron Mandel — Thu, 02 Jun 2005 16:28:13 +0000

Hypocrisy is no argument against a political position unless one only holds the position because of the hypocrite's prior perceived moral authority. Show me someone who supported anti-discrimination laws solely because they looked up to Clinton as a leader and I'll agree they should have thought twice about continuing their support in the face of Clinton's office womanizing. I don't think many such people actually exist.

By: David Woycechowsky

David Woycechowsky — Thu, 02 Jun 2005 13:47:03 +0000

$1.67 per employee is low, but it seems problematic that this risk is not automatically spread across all the participating employers. Unfortunately, without this risk spreading, you open up a possibility of small company / big liability.

Insurance might be the answer, but I guess I am a bit skeptical of the way actuarial science is applied in No. America today by insurance companies. My fear is that insurance companies could easily bring that $1.67 per employee up to $167.00 per employee. If the insurance companies wanted to, in their typical anti-trust exempt manner, do this I am sure they could and we could not stop them.

Side note: I lost a lot of respect for employment discrimation law during the Clinton presidency. My perception was that he practiced a form of gender discrimination in his workplaces repeatedly. Gender discrimination? sure. Moreover, it was orientation discrimination, too. I am sure that orientation mattered when Gov. Clinton decided which state employees got shown the dick and which got shown the door. Yet the folks who had been constantly tut tut tutting about discrimination finally got quiet, right when they had the most to complain about. This perceived hypocrisy might be good thing to bear in mind when over employment discrimination law euphorically waxing.