So How Can Anyone Be Opposed to Non-Discrimination Laws

First, let me establish a few background facts.  Several years ago I headed an attempt to put a Constitutional amendment legalizing gay marriage on the ballot here in Arizona.  As far back as 2004 I had a gay couple running a campground, and faced a customer petition demanding we remove them because they promoted moral degeneracy by being gay (it's for the children!).  I told those customers to camp somewhere else, as we were not changing our staffing.  Since then I have probably hired more gay couples to run campgrounds than anyone else in the business.

So how could I possibly be opposed to this:

After a period of foreshadowing and rumor, the Equal Employment Opportunity Commission has now gone ahead and ruled that employment discrimination on the basis of sexual orientation is forbidden under existing federal civil rights law, specifically the current ban on sex discrimination. Congress may have declined to pass the long-pending Employment Non-Discrimination Act (ENDA), but no matter; the commission can reach the same result on its own just by reinterpreting current law.

There are multiple problems with non-discrimination law as currently implemented and enforced in the US.  Larger companies, for example, struggle with disparate impact lawsuits from the EEOC, where statistical metrics that may have nothing to do with past discrimination are never-the-less used to justify discrimination penalties.

Smaller companies like mine tend to have a different problem.  It is an unfortunate fact of life that the employees who do the worst job and/or break the rules the most frequently tend to be the same ones with the least self-awareness.  As a result, no one wants to believe their termination is "fair", no matter how well documented or justified (I wrote yesterday that I have personally struggled with the same thing in my past employment).

Most folks grumble and walk away.  But what if one is in a "protected group" under discrimination law?  Now, not only is this person personally convinced that their firing was unfair, but there is a whole body of law geared to the assumption that their group may be treated unfairly.  There are also many lawyers and activists who will tell them that they were almost certainly treated unfairly.

So a fair percentage of people in protected groups whom we fire for cause will file complaints with the government or outright sue us for discrimination.  I will begin by saying that we have never lost a single one of these cases.   In one or two we paid someone a nominal amount just to save legal costs of pursuing the case to the bitter end, but none of these cases were even close.

This easy ability to sue, enabled by our current implementation of discrimination law, imposes a couple of costs on us.  First, each of these suits cost us about $20,000 to win (insurance companies are smart, they know exactly how this game works, and will not sell one an employment practices defense policy without at least a $25,000 deductible, particularly in California).  It takes a lot of effort for the government, even if neutral and not biased against employers as they are in California, to determine if the employee who was fired happened to be Eskimo or if the employee was fired because he was an Eskimo.  Unfortunately, the costs of this discovery are not symmetric.  It costs employees and their attorneys virtually nothing to take a shot at us with such discrimination cases, but costs us$20,000 each to defend and win (talk about Pyrrhic victories).  Which is why we sometimes will hand someone a few bucks even if their claim is absurd, just to avoid what turns out to be essentially legal blackmail.

Second, the threat of such suits and legal costs sometimes changes our behavior in ways that might be detrimental to our customers.  A natural response to this kind of threat is to be double careful in documenting issues with employees in protected groups, meaning their termination for cause is often delayed.  In a service business, almost anyone fired for cause has demonstrated characteristics that seriously hinder customer service, so drawing out the termination process also extends the negative impact on customers.

To make all this worse, many employees have discovered a legal dodge to enhance their post-employment lawsuits (I know that several advocacy groups in California recommend this tactic).  If the employee suspects he or she is about to be fired, they will, before getting fired, claim all sorts of past discrimination.  Now, when terminated, they can claim they where a whistle blower that that their termination was not for cause but really was retaliation against them for being a whistle-blower.

I remember one employee in California taking just this tactic, claiming discrimination just ahead of his termination, though he never presented any evidence beyond the vague claim.  We wasted weeks with an outside investigator checking into his claims, all while customer complaints about the employee continued to come in.  Eventually, we found nothing and fired him.  And got sued.  The case was so weak it was eventually dropped but it cost us -- you guessed it -- about $20,000 to defend.  Given that this was more than the entire amount this operation had made over five years, it was the straw that broke the camel's back and led to us walking about from that particular operation and over half of our other California business.

  • http://merrillovermatter.blogspot.com/ Greg Merrill

    Have you considered:

    - Immediately countersuing for filing a false claim - forcing them to start writing checks
    - Showing the plaintiff your previous track record. May discourage the attorney taking the case from pursuing it further when they realize you will not be a soft target

  • August

    I am against these laws. I don't think we can create anything that will last with them in place. They tend to have a leveling effect where the individual can easily be interfered with by the almighty state, because non of the normal systems of local governance are allowed to exist without interference. In other words, in order to be free, we must be able to have space where the state cannot go- we must be opaque to them, rather than having these promises of 'rights' that they pretend they are going to provide.

  • mogden

    The only logical solution is to make up excuses to avoid hiring protected class individuals because they are legally too risky to hire.

  • mesocyclone

    Poor Coyote. I have *zero* sympathy, because this (and the horribles below) were predictable consequences of the gay marriage movement.
    That gay marriage you supported is about to destroy any semblance of freedom of association. I was amazed that you supported it at the time, since it is anti-Libertarian (regardless of your rationalizations). But now, especially because of Kennedy's appalling majority decision, it will be used as a hammer. I hope Libertarians who cheered this on are happy now that the court has ruled that it is a fundamental *liberty* under our magically changing Constitution to *have a state grant you a certificate* for a marriage which never, in all of human history, has been called or treated as a marriage.

    We will soon see:

    Religious organizations lose their non-profit status.

    All religious charities which do not toe the line will be forced to shut down. Catholic Charities are already losing their adoption licenses because they prefer that the children they are responsible for go to natural families, not gay couples - *as should be their right!*

    Pastors who refuse to perform gay weddings will lose their license to officiate over *any* weddings of any sort.

    Religious people acting out of genuine conscience will continue to be forced to choose between their livelihood and their conscience. This means that clerks will have to issue marriage licenses or be fired; business people will have to materially participate in homosexual marriage ceremonies, or be run out of business. After all, Oregon just fined a baker $135,000 for refusing to bake a cake for a lesbian wedding, even though the baker had no problem selling to lesbians. A pizza parlor in the midwest was driven out of business and its owners into hiding because they honestly answered a reporter's question by saying that they would not make a pizza for a gay wedding, but that they had no problem serving gay people. And on, and on, it goes.

    Brendan Eich was thrown out of Mozilla for the horrible sin of having, 6 years previously, contributed to an anti-gay marriage proposition campaign. The proposition won by a majority in, of all places, California. At the time that Eichs contributed, Obama and Hillary were both on record against gay marriage. The contribution lists were confidential, but a gay activist stole them and publicized them.

    The religious in America are going to face a persecution like none in American history.

    This is simply totalitarianism.

    So you stood by and even cheered on these Red Guards.

    But they will come for you sooner or later.

    "First they came for the.,..;, and I was silent..."

    ...and then they came for me.

    But hey, because: discrimination!

  • markm

    This problem with racial discrimination claims not only predates the gay marriage movement, but goes back much further to the days when homosexuality was illegal in most states.

  • Mike Powers

    The movement Coyote supported was a Rand Paul style "get the government out of marriage", you dipshit. It didn't have anything to do with protected classes or antidiscrimination reparations.

  • mesocyclone

    Perhaps you should go back and look at what Coyote supported. Coyote supported gay marriage *within* today's framework. The fact the ideologically he would like marriage to not be a concern of the state does not change the fact that he supported knowing (and stating in his posting) that the state did have lots of laws about it.

    BTW... calling someone a "dipshit" may feel good to you, but it is offensive and turns a lot of people off from paying any attention to whatever you write.

  • Mike Powers

    Right, nobody's going to pay attention to anything I write except you, who wrote an essay in response :)

  • jdgalt

    "Religious people acting out of genuine conscience" who take a job but don't want to do part of it, SHOULD be forced to choose between their livelihood and their conscience -- because the alternative is to deprive customers of service they're paying for, and if that happens, customers will and should leave that business for a competitor whose employees WILL do their jobs.

    And as far as

    The religious in America are going to face a persecution like none in American history.

    I call BS. The Salem witch trials, after all, did happen here.

    Like feminists, Christians who want to see real oppression right now should start in the Middle East. There are some Christians (and women) whose lives are in danger. But I doubt you care about that. You just want to claim victim status yourself. Waaah!!

  • jdgalt

    More importantly, so long as it is still legal to fire (or not hire) someone for a million possible reasons, laws against discrimination will never accomplish their intended goal. For instance, people over 40 (including myself) certainly face as much discrimination today as we did before age discrimination was banned.

    The only way I can see that actual discrimination could be brought under control is if we adopted the German system of labor law (where every decision to hire or fire someone is followed by a hearing at the regulating agency, which can then veto it).

  • Tim Fowler

    Small business people should be able to decide what their job is. Larger businesses, certainly at least closely owned ones, but I would submit any business where the owners can be said to have a particular opionion of what business they should do (or the owners back managements decisions) should also be able to choose. If you don't want your business to sell wedding cakes to gay couples, then you shouldn't have to.

    Of course they are subject to their customers, no customers and their business goes under. But absent concerns of safety or fraud it shouldn't be the governments business to control what they do and don't do.

  • jdgalt

    I completely agree, as long as the business is up front with customers about what they won't do.

  • Cari Beth

    Correct. Unfortunately, this is another case of unintended consequences of "well-meaning" laws hurting the very ones they are designed to protect.
    This is a very nice example of how these laws raise the cost of dealing with protected groups, making them less attractive to employers. It is a vicious circle where everyone is less better off in the end. "Thanks" to all the do-gooders and well-meaning people who vote these politicians in that enact these laws. This example needs to be taught to everyone, or better yet, experienced by everyone to learn the real-world effects of well-intended legislation.

  • Cari Beth

    Mesocyclone,

    Coyote's example applies to all "protected" groups, ie: everyone except white males. Pointing out that the reason centers around the homosexual part of it only shows narrow minded critique. It also shows a lack of logic. I am guessing Coyote's stance on same-sex marriage fundamentally had to do with applying the law equally, despite the separate issue of crazy left-wing laws surrounding the application of their version of equality.

    Put another way: would ending slavery be justified morally knowing that those who were former slaves would be able to take advantage of the system and support laws that unfairly benefit them at the cost of others? It in no way makes it wrong to advocate the abolition of slavery despite current and future legal consequences of bad laws. It is a separate issue whether the result of doing something moral will cause us to have to deal with other problems.

    The problems you point out that happen to Christians (and others) due to freedom of association are a separate issue to be dealt with and are the fault of those specific laws and specific people supporting those laws, not the recognition that homosexuals ought to be treated the same as heterosexual couples before the law.

    The crazy movement to end freedom of association that comes forth from the left from the legalization of same-sex marriage needs to be dealt with. But it is not a reason to not treat all people equally before the law. I assume that Coyote does not support the infamous cake-baker ruling and other "discrimination" lawsuits and has actively said so.
    Having a separation between state and marriage (ideally the state and pretty much 99% of everything) is the ultimate answer that will take a long time to achieve if at all. Marriage should never have been given over to the state, and this is where good Christians and other religious people went wrong in supporting.

    PS:

    "I hope Libertarians who cheered this on are happy now that the court has ruled that it is a fundamental *liberty* under our magically changing Constitution to *have a state grant you a certificate* for a marriage which never, in all of human history, has been called or treated as a marriage."

    This argument is an appeal to antiquity. Appeal to antiquity is a rhetorical fallacy of critical thinking. Popular Conservative talk-show host Dennis Prager uses it all the time in his arguments against same-sex marriage.

    I share your dismay of the future that all people, not just Christians, will have to deal with in relation to the movement to end the freedom of association and the possible "persecution" that will be experienced.
    While joining other Libertarians in this fight, I would advise to look on the bright side. Matt 5:12 says, "Rejoice and be glad, because great is your reward in heaven, for in the same way they persecuted the prophets who were before you."