Discrimination

1. The ADA was designed to take away the ability of entrepreneurs to discriminate between normal and disabled employees during interviews and the hiring process.

The idea was that managers will start hiring at random, sometimes getting healthy people and other times, disabled ones.

2. When a hired person reveals himself to be disabled in the course of his work and in addition also unproductive, costing the company more than he is worth, the law demands that he not be fired.

3. The law also demands that potentially disabled customers be “accommodated” regardless of the cost to the business.

To be sure, willed blindness and coerced expenditures make companies and the economy as a whole less efficient. They destroy marginal entrepreneurs for whom the extra costs mean that they have no choice but to close their companies. But does it lead to more disabled people working?

Some people’s disabilities are obvious and visible; others are concealed. Suppose that a disabled person successfully evades being detected during the interview and gets hired. His poor performance (he comes in late, he can’t concentrate because of his medications, he is mean to his colleagues, whatever) soon becomes manifest. Indeed, a “disabled” person by this term’s very definition is unable to provide for himself, either at all or adequately. At the very least, his productivity is comparatively low, and he is worth little to business firms. But where is the fine line between “incompetent because of character flaws or stupidity” and “incompetent because of ‘genuine’ disability”?

The employer still has a right (thanks goodness) to fire a person for not performing but not for disability. What happens if a worker both is disabled and sucks at his job? That is a gray area, where the majority of lawsuits happen. Usually, a threat of a lawsuit is sufficient to get the employer reluctantly to agree to keep a loss-causing worker on his payroll.

There is also a semantic point to be made. “Working” is supposed to yield happiness for both the hired man and the entrepreneur. But for the latter, a worker is an expensive factor of production. The disabled incompetent worker costs the employer more than he is worth. In one sense, the person is “working” and doing something useful; and in another, he is wasting scarce resources. But let’s agree that coercion could keep a few extra disabled employees on welfare at their bosses’ expense.

So much for this consequence. But what about those disabled persons whose disability is harder to hide during the interview process? Maybe the applicant is in a wheelchair. The employer is now wary of hiring the disabled. Why should he expose himself to losses and lawsuits? Instead of being a possibly inexpensive asset, the disabled person becomes a clear liability. It is much more defensible in a court of law to fail to hire a disabled person in the first place than to fire such a person down the line when he proves to be a bad employee. So, the disabled guy goes home and waits for a call that never comes.

Moreover, it may pay an employer actively to take steps to discover potentially disabled people in order not to hire them by accident. Thus, on the one hand, the ADA law explicitly exempts illegal drug users from claiming to be disabled. On the other hand, it may well be the case that disabled people tend to use narcotics more, even if their disability stems from unrelated reasons. The link is that disability may be physically painful in itself and in addition lead to spiritual depression which people may seek to alleviate with all kinds of drugs. Hence the sharp rise in the frequency of drug tests, certainly otherwise pointless, costly, intrusive, and humiliating procedures. I remember being drug tested after already working for over a year for a company and not even as a full-time employee but as an independent computer consultant! I submit that this test would not have happened, if it had not been for the ADA.

Employment of these people declines due to the ADA. Empirically, the second effect outweighs the first, such that businesses suffer losses, customers endure bad service and defective products (made by incompetent employees), and genuinely disabled people become outcasts in polite society, unable to integrate themselves in social cooperation at all. Everyone loses, no one gains, except the idealistic fools to whom this law seems “compassionate.”

Even the first type of employees who end up leeching off the entrepreneurs who are afraid to fire them feel pretty soon the general contempt in the workplace. Everyone will treat them like dirt, because why not, when they don’t earn their keep? Besides, maybe the poor treatment will give them an incentive to quit.

Then there is the matter of disabled customers who must be “accommodated.” This coercion is so obviously uneconomic and un-utilitarian, paying no attention to business costs and revenues that the reason for it must be sought elsewhere. Perhaps, the moral high ground is captured as follows: “We are a merciful society, ready the sacrifice the greater happiness of everyone for the sake even of smaller happiness of the poor and pitiable disabled. This sacrifice measures our love for our fellow men.” Unfortunately, the business owners are not trusted to express their own love but are forced by the “merciful” to hurt both themselves and their customers. Underneath it is just Marxist tripe about greedy and exploitative capitalists. In any case, “love or go to jail” does not seem very loving in itself.

Moreover, “love” is not properly expressed by singling out a few people like business owners and putting the onus of supporting, as if by charity, some group entirely on them. It would be far more fair for everyone to contribute in taxes the money needed to pay for outfitting every business with the right “accommodations.” If “society” claims it is so eager to sacrifice its own happiness, then let it put its money where its mouth is, rather than ordering businessmen around. It will not do to object that since every business is subject to these regulations, the group that ultimately bears the burden is the consumers, i.e., everyone. This is because, in addition to making domestic business as a whole less efficient and America less prosperous, the law affects each company differently. This distorts the market. The ADA is not a market-neutral legislation. For example, small business is harmed more than big business. A head tax, say, to support the disabled is still fairer than the ADA.

For some reason, personal property like one’s own house is exempt from the need to accommodate the disabled. Suppose you have a couple of crippled friends. You’d like them to attend a party you are throwing. However, there is no ramp, and they can’t get in. Surely, it is up to you and your own calculations to determine whether installing the ramp is worth it or not. But business firms calculate, as well, except they do it in strict monetary terms rather than psychic terms. The distinction in the legal code between “commercial” and “private” (or personal) property is untenable; it’s a distinction without a difference. It is not the job of the state to read a businessman’s mind and decide whether the reason for his actions is legitimate or not. As you are in full control of your house, so a businessman must be in full control of his enterprise. Only then will every member of society be justly treated.

In short, the ADA diminishes human happiness, produces results opposite those it aims to achieve, is socialistic, and unjust. It must be immediately repealed.

Hiring managers won’t ever give you any feedback on why you didn’t get the job.

You can thank the feds for that.

Though I suppose they had “good intentions,” and that excuses the bad consequences.

So, I’m on the NPR website, and chance upon an article about a “study” of whether people’s “unconscious” views about race differences influence their behavior. And there’s this priceless sentence:

The million-dollar question is what such implicit associations tell us about individuals’ discriminatory behavior AND HOW IT CAN BE CHANGED (!). [emphasis mine]

Our left-liberal “elite” is still re-educating the unwashed regarding their uncouth habits. The passage goes on:

Are people who exhibit large biases on a black-white IAT more likely to interpret a black face as hostile, to subtly alter their body posture to communicate more aggression towards African Americans, or to engage in unfair hiring practices?

But the soft touch is there, too: the study allegedly illuminates the minds of “well-intentioned people who don’t explicitly hold sexist or racist beliefs.”

It’s nice of the author to consider people who do not deny that there are differences between races or sexes, well-intentioned. At least I’m relieved that it’s not my fault; I’m just a little confused, that’s all. The elite will hopefully gently enlighten and correct me. Just like Jude Wanniski, if in a different context: “Father is in the background, ready to discipline if necessary; Mother is in the foreground, offering to teach.”

Mom, Dad, what would we do without you?

“A Colorado baker who refused to make a cake for a gay couple has been given an ultimatum by a judge; serve gay weddings or face fines. … ‘At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses,’ Spence wrote. ‘This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.'”

And at second blush, and at third. So much for the ethics of liberty in this country.

Reflect again on the judge’s pronouncement that freedom “fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”

But there are two parties in this transaction: the seller and the buyer. What about the hurt due to the business owner’s offended feelings for being forced to do violence to his own conscience? Why must he endorse gay-ness simply because of who he is (e.g., a religious person)?

Hence, it must needs follow from the judge’s decision that he has quantified and compared the “hurts” and pleasures of these different people and come to the inescapable conclusion that the benefits of his decision outweigh the costs.

But this is preposterous. We cannot compare utilities intersubjectively. The judge is lying to us and to himself.

On what principles then should this case have been solved?

Any business transaction benefits both parties. It is a Pareto-superior move as compared with the state of affairs in which the transaction is prohibited.

Similarly, the absence of a transaction can also be Pareto-superior move relative to other alternatives, if either party judges it to be not in their interest.

If the baker refuses to exchange with the gay person, then the latter does not become worse off. He merely fails to become better off. But the baker does feel better off compared with the situation in which he is forced to exchange.

Thus, in the situation of no-exchange, neither party is worse off than before, and at least one party is better off: specifically, the baker who gets to enjoy the integrity of his character: he is true (let’s suppose) to his own faith and to himself.

With a forced transaction, however, the baker is straightforwardly made worse off. This is not a Pareto-superior move. One is harmed; the other is benefited. Whether on the whole the benefits outweigh the costs is not only unknowable. It may be an entirely meaningless question.

And in a good society, we should not sacrifice one person for the sake of another; society should stand in such a relation to any individual that the latter always benefits from the former, i.e., from being part of social cooperation. The judge’s decision has violated and defiled this relationship and must therefore be judged as perverse.

Suppose a Christian businessman refuses service to a homosexual.

This Christian is an unenlightened, uncouth, boorish bigot, says the liberal.

Suppose now a homosexual businessman refuses service to a Christian.

The homosexual is a filthy degenerate who rejects both true morals and true faith, says the conservative.

A libertarian does not participate in this shouting match. All he says is that both acts of “discrimination” are lawful, and it would be unjust for the government to seek to prevent them by force.

That’s all I can assert qua libertarian, and on a personal note, that’s all I’m willing to assert qua human being. I’m just not interested in culture wars.

I’ve got stuff going on in my life, interesting stuff that consumes my attention. I’m not wasting my time playing either side of the fence.

I wonder whether this term, consumer sovereignty, has played any pernicious role in the recent “discrimination” scandals. It has a technical economic meaning, namely that producers who want to make money must serve the consumers better than their rivals, and that everyone is a consumer and indirectly guides production in this capacity. But Rothbard was right in insisting that even economists abandon this phrase for the more universal “individual sovereignty” that would apply to both consumers and producers.

In more colloquial speech, this term is silly: consumers have no coercive power that a king has. There is no such thing as “public accommodation,” in which a business is “subservient” and therefore must be open to absolutely every consumer.

This gives producers the right to refuse to do business with someone, even if they are penalized by loss of revenues.

The young people are now convinced that racism, whatever that means, is the worst sin, and non-discrimination is the greatest virtue.

But discrimination is just another word for “taste.” The public schools have destroyed all discernment in the next generation who now think that beauty is the same as ugliness, truth as falsehood, and good as evil.

I once examined my cousin’s, a fine product of government indoctrination, soul and realized that it smelled like an ashtray. That’s what the non-discrimination ideology leads to in all its victims.