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Saturday, April 4, 2015

"Context Matters: A Better Libertarian Approach to Antidiscrimination Law"

An article by David Bernstein at the Cato Institute.

I disagree with Bernstein's suggestion that repealing anti-discrimination laws, without overall government reform, should be suspect. The problem with that approach is that you will never get overall reform. You have to start somewhere, and reform of anti-discrimination laws are as good a place to start as another.

Like many other government initiatives that started with good intentions, as the need for such legislation has disappeared, the result has been an increased concentration on minor or inconsequential matters in order to justify continued existence of government bureaucracies and plaintiff's attorneys. At one time, the issue was that people have access to jobs (or not be driven out of a job by constant, degrading, harassment), housing, etc., because of whatever characteristic that was the subject of the legislation, to where, now, a single off-color joke, or question of why blacks can use the "n-word" but whites cannot, are now subject to anti-discrimination enforcement. Even being nice will could land you in hot-water; for instance, suggesting that a handicapped person may be more comfortable in a ground floor apartment instead of an apartment requiring him or her to walk up stairs is now unlawful "steering".

Part of the problem is that we no longer live with the original 1964 Civil Rights Act. Under the original Act, in order to prove discrimination, the motive for an action had to primarily be for purpose of discrimination. Now, discrimination only needs to be a motivating factor. So, under the original law, an employer could only be held liable for discrimination in firing an employee if the termination was because of the employee's protected class--if there was another valid reason to terminate, there was no actionable discrimination. Now, if the employee is fired for theft, but some supervisor 6 months earlier said something about the person's national origin, that would be enough to find discrimination.

Another problem is that there is no consequences for bringing an unjustified suit, encouraging "shake-down" suits and suits for trivial matters. Although the Act supposedly provides that the losing party is responsible to pay attorney's fees to the winning party, court decisions have actually made it all but impossible for defendants to collect attorney's fees. Since a plaintiff can bring a suit essentially for free, there is little incentive for not bringing suit; whereas, because even a finding of nominal damages ($1) can garner an award of attorney's fees, and plaintiff's attorneys have little check on what they can claim as a "reasonable" hourly rate or the number of hours that they claim, there is significant appeal for a plaintiff's attorney to do so.

There are many more ills resulting from the current state of anti-discrimination laws, which may be the subject of a future post. But we increasingly live in a society where ant-discrimination laws have outlived their usefulness, and "mission creep" has made them more invasive and counter-productive than ever.

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