The Fair Employment licenses and the Creative Comment licenses face similar kinds of resistence. We often hear people say that no employer in its right mind would volunteer for legal liability. But this sounds a lot like people who say that noone in their right mind would ever throw away potential copyright revenues.
But it turns out that there are lots of parallel reasons why adopting these licenses make plenty of sense.
First and foremost, committing to equality is good business. 88% of the public opposes employment discrimination against gay and lesbian workers. And licensing the fair employment mark could be a great recruiting tool. [The parallel here is that giving away part of your copyright bundle of rights can still let you sell books or services or get your ideas out in ways that can produce revenue.]
The cost of allowing private suits is incredibly low. The GAO studied 11 states which had already prohibited employer discrimination. In the average year only 6/100th of a percent of employees brought claims of sexual orientation discrimination. Even if an average claim costs an employer $100,000, this would represent an extra cost per employee of only $1.67 per year. Employers who voluntarily sign up are even less likely to face liability. Employers who operate in the 15 states and dozens of municipalities that independently prohibit this type of discrimination have no additional exposure. [The parallel here is that there are plenty of copyrights that would never have produced revenue anyway — so you have nothing to lose by giving it away.]
Most importantly, promising not to discriminate is the right thing to do. Licensing the mark doesn’t mean that an employer can’t contest claims of discrimination. It just means that the business can’t stand up in court and say “we have a right to discriminate against gay and lesbian employees if we feel like it.” [The parallel is the most obvious — setting copyright information free is a powerful engine for social good.]
$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.
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.
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.
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.
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.”
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.
KL, Would you also opt out of race discrimination law if Congress gave you the option?