Mickey Kaus, in linking to this post below (thanks, Mickey!), asks:
If a Hispanic who has performed as poorly and prominently as Patti Solis Doyle can’t be fired without her employer getting grief from Hispanic leaders, isn’t that a pretty big disincentive to hiring a Hispanic in the first place? Message: Stick to white males — if they screw up, you can sack them and nobody will whine.
Actually, that disincentive and that “message” have long been recognized as one of the costs of civil rights enforcement.
A classic example is the Civil Rights Act of 1991, which made it easier for disappointed job seekers to file “disparate impact” claims based on statistical evidence and increased the money-damage awards to plaintiffs.
In this excellent 2003 article, Stuart Taylor Jr. discusses a study by a Stanford economist and a Northwestern management professor, among other evidence, indicating that the 1991 law made “employers in traditionally white-male industries marginally less likely to hire minorities and women.”
How could the risk of high damage awards for discriminating against minorities and women make employers more hesitant to hire them? Because employers know that far more lawsuits are brought, and far greater damages are awarded, for claims of discrimination in firing than in hiring. So the risk of being sued for turning down a minority or female applicant is dwarfed by the risk of being sued later for firing the same applicant after giving him or her a try.
“The increases in potential damage awards,” write Oyer and Schaefer, “coupled with a decades-long trend toward firing-based, and away from hiring-based, employment-discrimination litigation, means the main impact of the act was to increase the costs to employers of dismissing protected workers…. Because [an employer] feels firing-based costs only if it decides to hire, the costs act as an implicit tax on such hiring. Firing-based protections may therefore lead employers to hire fewer protected workers, not more.”
Nor, Taylor continues, were these results unanticipated.
…. In a Stanford Law Review article half a year before Congress passed the legislation, Stanford Law School professor John J. Donohue III and co-author Peter Siegelman documented a major shift in the nature of job-discrimination lawsuits—as well as a spectacular increase in their number—since 1970: “While most cases formerly attacked discrimination in hiring, today the vast majority of all litigation suits challenge discrimination in discharge.” And although the 1964 Civil Rights Act was extremely valuable in breaking down the flagrant discrimination in hiring then practiced by many employers, the authors wrote, the “dramatic shift to firing cases has greatly increased the likelihood that Title VII will create a drag on the hiring of protected workers rather than the positive inducement it originally provided.”
Note that Taylor did not recommend (and, for what it’s worth, neither do I) that Congress eliminate damages for discriminatory firing, “[e]ven if the costs of such lawsuits to minorities and women, not to mention employers, have come to exceed their benefits….”
Racial discrimination is wrong, but that doesn’t mean we should refuse to see the costs of eliminating it. And it is always useful to be reminded that efforts to do good, especially when the power of the state is enlisted in the cause, often do both more and less than the good intended.
At the end of the day, it is only the highly intelligent who will be able to wend their way successfully though the Byzantine legal system we have constructed.
Perhaps that was the intent.
Oh, those crafty Talmudic scholars.
John writes:
>>>”Racial discrimination is wrong, but that doesn’t mean we should refuse to see the costs of eliminating it. And it is always useful to be reminded that efforts to do good, especially when the power of the state is enlisted in the cause, often do both more and less than the good intended.”
Excellent post, John. Perhaps…just PERHAPS, you and the rest of the anti-affirmative action types should read back these two sentences before you embark on yet another shameless crusade to destroy opportunities for under-represented minority groups in a racist and sexist society.
–Cobra
cobra – I think john is making a very fair point. My own experience with employment discrimination laws is that those that are truly discriminated against rarely exercise their rights under such laws – they are either too smart or too diligent – or practical and realistic – and learn to get around the indignities of life without resorting to claims. Accordingly, a significant
majority of the claims brought are fairly weak or specious – the laws are used as a shield to reward less than competent work rather than as a sword to ward off wrongful discrimination. But just because the laws are often misused doesn’t mean we should junk them – there is a very vital national interest in eliminating discrimination of any type based on race or national origin and the inevitable burden of maintaining such programs – apart from the costs of administering themselves – are the plethora of frankly lousy claims that arise. But no question there are salutary effects with a non-discrimination legal regime – and so its costs and burdens are in most cases justifiable. Of course, non-discrimination works both ways – so-called minorities can and do discriminate based on race – and this is every bit as wrong and legally actionable as any other sort.
Now on to your point – that of a shameless crusade to destroy opportunities for under-represented minority groups in a racist and sexist society. What you really mean is that you want to discriminate based on race and national origin, because if you don’t, outcomes, and the not opportunities available, will not be to your liking, given the very manifest achievement gaps that exist. Again, this is old and shopworn stuff – but it is a little silly to label, for example, the activities of those that support meritocratic admissions at Univ of Michigan as a “shameless crusade”, as if matriculation at Wayne State or Eastern Michigan somehow deprives a person of all of life’s opportunity. Given the abysmal performance at most of our urban schools, affirmative action is largely irrelevant – it is a symbolic issue for a scant few and one that is emotionally important to some, because it makes certain populations feel less marginalized than they otherwise would. But policy making based on emotion and feelings…hmmmm, not sure that makes any sense either.
But what principled people really want to know is when we will get beyond the insidious morass known as racial identity politics and policy making? Does it end in 25 years? 100 years? With ever increasing diversity here from all regions of the world, will we begin assessing racial purity as South Africa did so we can parse out entitlements relative to perceived victim status? These are not idle questions – and as John repeatedly posits, it seems the only way out of this emerging morass is to simply hew to the principle of non-discrimination – of any kind, as painful as it might be to people expecting certain entitlements. Progressives constantly complain that conservatives look at things too narrowly – in looking at the bigger picture here, how does that deserve the moniker of a shameless crusade?