The Alternative to Non-Discrimination Law

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In my previous post I argued that non-discrimination laws were immoral. But you might still wonder what we can do about the many irrational employers who might discriminate in the workplace. Without such laws won’t many employers consider race and sex unfairly? Won’t there be businesses that choose not to hire certain individuals based on their sex, like women for instance? Or simply choose not to pay them as much as men? In such cases, isn’t the government justified in enforcing reverse discrimination as a means to ending discrimination?

The answer is twofold. The first part of the answer is simply no, the government is never justified in forcing people to make what it regards, rightly or wrongly, as “rational”. No initiation of force by one human being (or institution) against another can be “justified”—such force inherently rejects the realm of reason and justification for the “might makes right” law of the jungle. A rational government is justified only in protecting individual rights, not in forcing people to be “good” to themselves or each other. [See here, here, and here for fuller explanation of this point.]

The second part of the answer is that even though it is not the government’s role to punish these people, it does not mean that they should not and will not be punished. They should be and are punished, both by the market and by the moral condemnation of rational individuals.

Think first of the practical consequences of a business that, for example, hired men only, or only served African Americans, or paid all of their employees based on what sort of ancestry they have. Running a business this way would mean that the best working employees, rather than being promoted, rewarded, and recognized, are left discouraged and under-utilized, and in many cases driven to leave the company. The company pays a real price for its discriminatory practices.

The full extent of the price depends on the extent to which rational individuals throw their weight behind what they regard as moral, and against what they regard as immoral. It is we as individuals, not government, that bear the actual responsibility for promoting the good and discouraging the evil we encounter. The power of public endorsement or condemnation is not to be underestimated.

Just ask yourself: Would you eat at a restaurant that only served white people, or that designated a special section for non-whites? Would you shop at a retail store that refused to hire women on principle? Would you buy a car from a dealership that refused to sell cars to gays? It is your job, not the government’s, to “vote with your feet” by endorsing certain values through your chosen actions.

There are cases in which people will ignore discriminatory practices, and a business may be able to temporarily thrive despite its irrationality. If a department store announced that it was militantly anti-homosexual, perhaps enough people would be indifferent to that fact that they would continue to shop there. But the response in such situations is not to go running to the government to force the department store to hire and sell to gay people. Tempting as that may be, the gun of the government is not the solution to every social ill. The solution is to advocate and educate the public—to work to bring awareness of the issue, and to encourage boycotts.

So long as we as individuals advocate for moral ideas and causes, in the fullness of time any business practicing discrimination will suffer as a result of that practice—and in a free market it would almost certainly fail. Such a business would not withstand the double assault of efficient competitors more focused on making profits than practicing racism, and the principled boycotts of a vocal and discerning minority of customers.

If we truly want to live in a world that does not unjustly discriminate on the basis of factors such as race, gender, sexual orientation, then we should work to create such a world. In encouraging rather than discouraging discrimination, the seeming shortcut of anti-discrimination legislation is part of the problem, not the solution.

Posted by on May 22, 2009. Filed under Government & Law, Spring 2009. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry
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  • patrick garrett

    I believe that the premise of government intervention in business is faulty and actually is at odds with what our founding fathers thought of when they attempted to codify the rights of man in to law.
    My question about the free market solution to businesses that irrationally discriminate, is what constitutes discrimination? Does a lack of parity of pay for men and women doing the same job indicate discrimination, or is there another view? African Americans could give us some insight into my question in that, there were jim crow laws in the south that did not exist in the north in the first half of the twentieth century. Some of my friends tell me that they were more comfortable dealing with racism when it was in the open, but the hidden racism of the north was harder to deal with. Tests for civil service jobs are claimed as an example of this, in that the scores were often hard to know, and the obvious lack of any black police officers in cities with a not insignificant amount of minorities in the city. What does one do when the discrimination is one of compensation? My understanding of the Ledbetter law was that it resulted from the wage difference paid to a woman doing the same work as a man in a tire company. How would I as a consumer of tires know that the company I bought tires from was unfair in its dealings with women at the managerial level? I do not think that the government is the correct arbiter of equal wages, and I doubt that wage rates make one whit of difference to me when I buy something, but if I knew that a company who wanted my business made it a policy not to hire young women because they may get pregnant, and eligible for the family medical leave act, I may decide not to deal with that company. But where would I learn this information? Maybe consumer reports?

  • patrick garrett

    I believe that the premise of government intervention in business is faulty and actually is at odds with what our founding fathers thought of when they attempted to codify the rights of man in to law.
    My question about the free market solution to businesses that irrationally discriminate, is what constitutes discrimination? Does a lack of parity of pay for men and women doing the same job indicate discrimination, or is there another view? African Americans could give us some insight into my question in that, there were jim crow laws in the south that did not exist in the north in the first half of the twentieth century. Some of my friends tell me that they were more comfortable dealing with racism when it was in the open, but the hidden racism of the north was harder to deal with. Tests for civil service jobs are claimed as an example of this, in that the scores were often hard to know, and the obvious lack of any black police officers in cities with a not insignificant amount of minorities in the city. What does one do when the discrimination is one of compensation? My understanding of the Ledbetter law was that it resulted from the wage difference paid to a woman doing the same work as a man in a tire company. How would I as a consumer of tires know that the company I bought tires from was unfair in its dealings with women at the managerial level? I do not think that the government is the correct arbiter of equal wages, and I doubt that wage rates make one whit of difference to me when I buy something, but if I knew that a company who wanted my business made it a policy not to hire young women because they may get pregnant, and eligible for the family medical leave act, I may decide not to deal with that company. But where would I learn this information? Maybe consumer reports?

  • Jeff

    Patrick said, “… but if I knew that a company who wanted my business made it a policy not to hire young women because they may get pregnant, and eligible for the family medical leave act, I may decide not to deal with that company.”

    The ability to get pregnant is a perfectly rational consideration! Their obligation is not to subsidize pregnant woman, rather to make a profit.

  • Jeff

    Patrick said, “… but if I knew that a company who wanted my business made it a policy not to hire young women because they may get pregnant, and eligible for the family medical leave act, I may decide not to deal with that company.”

    The ability to get pregnant is a perfectly rational consideration! Their obligation is not to subsidize pregnant woman, rather to make a profit.

  • Steve

    I think the heart of this issue is that the governments job is to enforce rights, and one doesn’t have a right to a job – that’s a consensual agreement. There’s no such problem as “what to do” about people who discriminate in jobs, just as there’s no such problem as what to do about people who discriminate in friendships, or people who get into relationships that are bad for them. I think it doesn’t really help the cause of freedom to pander to the widespread feeling that discrimination has to be “solved” by the free market in order for free markets to be OK. If you feel the “problem” of discrimination has to be solved, then you’re wrong, and you need to get over it, because acting on that feeling hurts people – even the people who are subject to discrimination. It’s basically a microcosm of the larger idea: freedom is good, but if people can make their own choices, then they’ll make wrong ones, and those wrong choices affect other people – then what? That kind of thinking leads to the false notion of “balancing” freedoms. The only way out of that pit is to grasp that *rights* are what people need in order to live together – even a person who is being denied a job for an irrational reason. There’s no reason to expect that a free market would wipe out discrimination – it is possible for people to be successful while holding isolated pockets of bad ideas. Some successful employers, even major ones, might discriminate. This is not a *political* problem. If you want to solve this problem, write a book or make a speech. Otherwise, the terms people set for consensual agreements are *private*. The “problem” of discrimination is a problem for each person to solve.

  • Steve

    I think the heart of this issue is that the governments job is to enforce rights, and one doesn’t have a right to a job – that’s a consensual agreement. There’s no such problem as “what to do” about people who discriminate in jobs, just as there’s no such problem as what to do about people who discriminate in friendships, or people who get into relationships that are bad for them. I think it doesn’t really help the cause of freedom to pander to the widespread feeling that discrimination has to be “solved” by the free market in order for free markets to be OK. If you feel the “problem” of discrimination has to be solved, then you’re wrong, and you need to get over it, because acting on that feeling hurts people – even the people who are subject to discrimination. It’s basically a microcosm of the larger idea: freedom is good, but if people can make their own choices, then they’ll make wrong ones, and those wrong choices affect other people – then what? That kind of thinking leads to the false notion of “balancing” freedoms. The only way out of that pit is to grasp that *rights* are what people need in order to live together – even a person who is being denied a job for an irrational reason. There’s no reason to expect that a free market would wipe out discrimination – it is possible for people to be successful while holding isolated pockets of bad ideas. Some successful employers, even major ones, might discriminate. This is not a *political* problem. If you want to solve this problem, write a book or make a speech. Otherwise, the terms people set for consensual agreements are *private*. The “problem” of discrimination is a problem for each person to solve.

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    […] customers, I have been contemplating a blog that outlines my views on the subject. Then I read “The Alternative to Non-Discrimination Law”. Posted on The Undercurrent blog, the author and commentators do a more than satisfactory job […]