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March of the Protected Groups

April 27, 2012, 10:13 am

From California State contract language I am reviewing:

During the performance of this Contract, Concessionaire and its employees shall not unlawfully discriminate, harass, or allow harassment against any employee, applicant for employment, or any member of the public because of sex, sexual orientation, race, color, religious creed, marital status, need for family and medical care leave, ancestry, national origin, medical condition (cancer/genetic characteristics), age (40 and above), disability (mental and physical) including HIV and AIDS, need for pregnancy disability leave, or need for reasonable accommodation.

This is at least double the length of such passages in contracts I saw 8 years ago.  I wonder what the list will look like in another 10 years?

This used to be simple -- treat everyone equally.  But this is no longer sufficient to conform.  New groups added to the list require accommodations of one sort or another.  Non-discrimination requirements have morphed for us from "treat everyone the same" to "here is a list of groups with special privileges."  Generally, it's not that hard at present to fulfill but who knows how onerous it will be in a decade or two?

Tags: , , ,
Category: Regulation
  • me

    Orwell said it well: All pigs are equal. But... some pigs are more equal than others.

    Quite honestly, the US has reached the point where contracts are effectively meaningless. There is a lot of law regulating what is permissible that might render existing contracts full or partly null and void, there is the random-crapshot that's a lawsuit actually happening. And there is what's practically enforceable.

    It's a fascinating trajectory from whatever-I-can-get-away-with-goes to rule by law to fairness in law to the-law-is-so-complex-that-whatever-I-can-get-away-with-goes. We've come full circle.

    I just wonder what comes next: anarchism, fascism, a regime transition or maybe "law 2.0"?

  • gn

    The whole ADA pool-lift fiasco is another interesting example. Permanent lifts or portable lifts? Always available or available when requested and stored when not in use? Who pays if the lift is used as a diving board by Junior and he jumps into the hot tub and breaks his neck?

    There are only 50,000 hotels affected... no big deal.

  • David

    Just add work performance and I think you will have captured the endstate--basically, it will be impossible to not hire the first applicant, regardless of whether they can actually perform the needed work. Then again it may be impossible for a private employer to hire anyone at all.

  • Dave Boz

    The ADA pool-lift business will be solved by the market: in a dozen years, you won't find a hotel with a swimming pool.

    Quite often the "everyone must have it or nobody can have it" attitude results in nobody having it. Which is why we don't have those Decaux pay-toilets on the street that we find in other countries.

  • samsam von virginia

    Interestingly, our Constitution has age discrimination built in to it.

  • NL_

    They mixed together characteristics irrelevant from work performance, like race and gender, with characteristics relevant to work performance that may result in absences. Basically, you are forced to accommodate the personal schedules of people who might need absences. That seems like something businesses and workers can sort out themselves and workers can search for jobs that pay less but have flexible hours, while others can sacrifice their vacation time for better pay (biglaw lawyers made this tradeoff). It's crazy to think that everybody needs the same level of vacation time and emergency leave.

  • Mesa Econoguy

    Positive rights give those "more equal" citizens additional rights at the expense of the rest of us.

  • kebko

    On the pool lifts, is it really a good idea to have parapalegics putting themselves in unsupervised pools of water? Is this equal protection, or assisted suicide? I've seen a couple of demo videos, but I don't think the people in the videos were actually disabled. If the pool rules sign had a line that said, "Swimmers must have the capacity to enter and exit the pool unassisted." that would seem like a reasonable safety measure to me.

  • Gil

    Treat everyone equal? Really? I thought non-discrimination is an affront to Libertariansim - people are free to discriminate as much as they like in their private home and business.

  • http://www.cakestoindia.com cakestoindia

    Keep up the good work. Best of luck. From http://www.cakestoindia.com

  • David W

    >I thought non-discrimination is an affront to Libertariansim – people are free >to discriminate as much as they like in their private home and business.

    Well, there's all sorts of libertarians. In this libertarian's view - discrimination is just like drug use. Idiotic, likely to hurt other people, and mixing in the government just makes it worse.

  • IGotBupkis, Legally Defined Cyberbully in All 57 States

    >>> The ADA pool-lift business will be solved by the market: in a dozen years, you won’t find a hotel with a swimming pool.

    Pretty much the same thing happened with diving boards in apartment complexes, and even home diving boards. If there's a diving board at a home pool, the insurance is jacked up above the already non-trivial "pool liability" expense.

    Time was, people realized "shit happens". Nowadays, there's an overabundance of attorneys somewhere ready to put their all into proving someone should pay for that shit.

  • IGotBupkis, Legally Defined Cyberbully in All 57 States

    >>>> I thought non-discrimination is an affront to Libertariansim – people are free >to discriminate as much as they like in their private home and business.

    >>> Well, there’s all sorts of libertarians. In this libertarian’s view – discrimination is just like drug use. Idiotic, likely to hurt other people, and mixing in the government just makes it worse.

    Yeah, I do confess I've argued both sides of that, it's not an easy answer. As usual, I believe the problem lies in the fact that, while there are probably some well-definable situations where it makes sense to have law regarding the matter, it's damned near impossible to make that law stick to that narrow band. As with censorship, once you legitimize the idea of censorship, there's always someone out there who is SURE they have an exception to the notion of "no censorship" which is just as valid.

    So you pretty much have to select which is worse -- the behavior or the abuse of government possibly being enabled.

    I have a major problem, for example, with any employer having control over your actions, off the job, which do not become public in a manner which reflects ill on your employer.

    An obvious example of this is homosexual behavior. If someone is gay, and doesn't flount it around the office, and doesn't become embroiled in a public scandal which leads people to notice that they are involved in this scandal and work at "x", then it's really none of the company's business if that person is gay or not.

    Part of that IS founded in libertarianism -- someone's right to be free is getting trampled... either the employee's or the employer's. We can't stop that, so the question becomes -- whose is it going to be?

    And that issue is at the heart of libertarianism -- often choices are not "We should make you free!", but "Who is the one who gets to be free in any given scenario where freedoms conflict?"

  • rg

    LOL. Have you seen the new federal "green" clauses yet that you must testify to??????

    And installed the fixed, permanent ADA lifts for all of your swimming access points?

    And... I could go on....

    ughhhhhhhhhhhhhhhhhhhhhhhh!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!