A while back I (for a short time) chaired an effort to get a ballot initiative in Arizona to change to Constitution to allow gay marriage. In the process, gay rights advocates approached me for support of another law to add LGBT persons to the list of protected classes that are covered by workplace discrimination laws.
I refused to help, and these folks immediately labeled me a hypocrite. To be fair to them, they honestly thought that workplace discrimination laws did exactly what they intended to do - ban workplace discrimination of an overt sort (e.g., "what, you're gay? Well, you can't work around here any more"). But anti-discrimination law has a lot of other unintended consequences that are all bad for even the most fair-minded business owner.
Because most of the actual stories I have been through are (and should be) confidential, I will illustrate the problem from a story out of the national news.
Debbie Wasserman Schultz is Chair of the Democratic Party. Several years ago various party members became dissatisfied with her leadership, a pretty normal occurrence for such a position, particularly after Congressional losses in several elections. I compare the job to that of an NFL coach, who has job security only as long as he is winning (see: Jim Harbaugh in San Francisco).
Wasserman Schultz’s position as the head of the DNC has long been a source of contention among Democrats, and Politico has previously documented the issue. In September 2014, Wasserman Schultz’s gaffes caught up to her when a string of Democrats voiced their distaste for the way the Florida congresswoman had led the party.
That report found tension between Wasserman Schultz and Obama dating back to 2011 .... At the time, Wasserman Schultz had allegedly complained to Obama about not being able to hire a donor’s daughter to work for her at the DNC.
“Obama summed up his reaction to staff afterward: ‘Really?’ ” according to a source that was present.
So, faced with threats of losing her position based on poor job performance, her response was this:
Democratic National Committee Chairwoman Debbie Wasserman Schultz was prepared to go full force against President Obama if he tried to replace her in 2013.
Wasserman Schultz, according to Politico, was going to accuse Obama of being anti-woman and anti-Semitic — apparently to cover all the bases — if he dared consider replacing her as chairwoman.
There is absolutely no rational reason to believe President Obama wanted to fire her because she was a woman. Seriously, Valerie Jarrett practically runs the country but Obama doesn't like Shultz because she is a woman? I would bet that in fact she was hired for the position in large part because she was a woman. But she was perfectly willing to use the fact that she happened to be in some protected employment classes to try to head off a merit-based firing.
For businesses, this means two things
- It typically takes much longer to terminate someone in a protected class, because businesses want to make sure they have an absolutely iron-clad case if the termination is later challenged. For a service business like ours, this sometimes means tolerating dangerous behavior or really bad customer service longer (with all the risks that entails) from someone in a protected group rather than from, say, a white male.
- A large number of employees in protected groups will file grievances to the state, or even sue, over even the most well-documented and justified termination. Even when employers win such cases, each one take tens of thousands of dollars in legal fees to win. As interpreted by courts and state civil rights agencies, anti-discrimination law seems to create burden of proof on the part of employers to prove they did nothing wrong, rather than the other way around.