Recently, a discussion of a hate crimes post on this site included a discussion of anti-discrimination law. I would like to focus on anti-discrimination law specifically, and point out pernicious effects that I rarely see addressed.
Let’s take the “ideal” anti-discrimination law, one that doesn’t involve any affirmative action requirements. The idea is that the government is making it illegal to refuse to hire/promote/retain a person if you’re doing it because he’s a “minority”. If you do the exact same thing for some other reason, then in theory you are complying with the law.
This goes even further than “hate crimes” law or any other law. In the “hate crimes” case, an act that is already wrong, when it’s motivated by “hate”, is an even worse offense than that act usually is. In the case of employment discrimination law, an act that is morally neutral (refusing to trade with a given person) becomes wrong when the act is motivated by a “wrong” reason, but remains morally neutral when the act is not motivated by such a reason.
How on Earth do you enforce such a law? Without a mind-reading device, such a law cannot be properly enforced, except in a few cases where the law is lucky enough to find a damning paper trail or recording. For the rest of the cases, you have to look at hiring activity, and divine the employer’s intention from that.
Now anyone who offers employment will have a (nearly) constant number of positions to offer, a set of people he hires, a set of people he refuses to hire, and a set of people (more than a quarter-billion strong) who never present themselves for his consideration. Assuming that applicants outnumber jobs, every time he hires a person A, he must simultaneously reject some other person B. That means that punishing him for refusing to hire person B for whatever reason is logically equivalent to punishing him for hiring some other person who is not B.
Now remember that there are no mindreading devices. To even come close to enforcing the law properly, the employer must now be held to account for every hiring decision he makes, for every person he brings on board. Regardless of what is taken as evidence of his motivation for hiring A or for not hiring B, the result is that the employer will have to be ready at all times to prove to a jury that A was in fact the most qualified person available.
How do you prove such a thing to strangers who can’t read your mind, weren’t there for the interview, and in any event will never lose or gain any money based on whether your evaluation of everyone’s qualifications was correct? A good way to prove it is with documentary evidence. If person A has a generally recognized credential stating that he is qualified for the position and person B does not, the employer can prove his case and have a verdict in his favor. If person A does not have such a credential and person B does, regardless of whether the employer had another perfectly good reason for choosing A that isn’t so good at convincing a jury, his odds of a favorable verdict go down considerably.
Thus, any possible anti-discrimination law will strongly discourage employers from hiring people without the requisite credentials, regardless of whether they are capable of doing the job. In the case of the actual anti-discrimination law that we are saddled with, subsequent judgements have even eliminated IQ tests as admissible documentary evidence, except insofar as applicants take, at their own expense, a substitute IQ test (never, of course, called by that name) costing many thousands of dollars and requiring four years to complete (also known as a college curriculum). Thus we see situations where employers who offer jobs that no existing college curriculum covers any aspect of will still sometimes require a college degree, so that they can convince a jury if needed that they had a good reason for choosing the individual they end up choosing.
For jobs where the curriculum is unrelated, the entire cost of the course of study, in time and money, is a complete deadweight loss imposed by this law. And the taxpayers often bear a significant portion of the monetary cost as well in our system.
Now since the juries that are judging the worth of this credential aren’t actually gaining or losing any money regardless of the hired and rejected employees’ actual (potential) profit that they (might) generate for the employer, they will not tend to be as good at judging the actual worth of the credential as the actual employer will. This opens up an opportunity for colleges and potential employees to profit by offering (on the one hand) and pursuing (on the other hand) “dumbed-down” degrees. The employer would have a vested interest in knowing perfectly well that the degree is less useful than it should be in certifying a potential employee, but the jury isn’t going to have the same reason to learn this. As long as it isn’t blatantly obvious that the degree is completely bogus by existing standards, it still can be useful to the unscrupulous worker in encouraging the employer to pass up the greater potential profit generated by some other uncredentialed potential employee and hire the one with the paper that will keep the law off his back.
As time goes on, knowledge of what’s going on filters out, employers and juries alike figure out that bogus degrees are flooding the market, and (because that law is still in place) employers turn to requiring further certification that is functionally equivalent to the previous value of the previous certification and allows the employer to get away with hiring people with it and rejecting people without it. That is what happened to the high school diploma and what is beginning to happen to bachelor’s degrees.
Which means that everyone who wants a decent job is forced to waste more time than previous job-seekers did pursuing degrees that mean the same thing as the ones that their forebears presented. And all these people have a vested interest in insuring that their course of study never gets harder, since that would net you a degree that does require more effort and talent to get but doesn’t show any promise of convincing juries of that qualification and talent, or at least of convincing employers that juries can be convinced of that qualification and talent. Thus, undoing the damage is problematic at best, and the progression is generally one-way.
All that wasted time is causing other problems. Some people fail to get a good credential, not because they aren’t capable of passing, but because they’ve had children in the meantime (and some, of course, abort rather than suffer such derailment…) – and getting everyone to remain childfree (much less celibate) until the age of 18-22 is something we’ve been trying with relatively little success for decades, and I’ve never heard of a society that actually succeeded in such an endeavor. Everyone who wants a decent job must remain single and childfree for longer and longer periods of time, wasting more and more of their prime childbearing years pursuing certifications that offer less and less actual qualification per unit time. Since a high school diploma now barely qualifies you for a job that allows you to support yourself (if you live like a pauper), everyone who wants to stay out of poverty must remain legally children until they finish high school, at which point they’ve already wasted at least half a decade of their physical, cognitive, and sexual maturity playing the role of children. (They tend to lack behavioral maturity because there’s no incentive left to practice it… and people with the strength and intelligence of adults without the maturity can get into a lot of trouble.) Those who want something better must usually continue being at least partially supported by parents while they spend at least four years of their (theoretically adult) lives getting that second certification with which they can begin their career, and begin supporting themsevles and a family in at least middle-class style. This is, to my mind, a travesty, even if it were possible to somehow prevent everyone from dropping out along the way, which it isn’t as far as I can tell.
Another problem is that as the cost, in time and money, of qualifying for a particular job increases, the renumeration required to make that investment worthwhile also increases. This means that the cost of an employee with a given skill and native talent will tend to go up over time, until it exceeds the value of that employee’s work, at which point, substitutes will be found and the market for that employee’s work disappears. Sometimes the substitutes come from overseas; an American programmer would lose his shirt if he charged the same rates that Indian programmers realize a handsome profit from. Other times, we end up doing without, and new products and services we could otherwise be enjoying never appear on the market. Even before either one of these things happens, the cost of the work to the employer and to that employer’s customers will tend to go up over time, leaving us all poorer than we otherwise would be.
You can see this relative impoverishment even if you follow a simpler line of reasoning. As people’s productive lifetimes are shortened, the total wealth they can produce goes down. The longer that people must support their own unproductive children, the fewer resources that are left to consume in other ways or to invest. Add in the monetary cost of all those credentials, and our available resources go down even further below what they should have been.
You may concede all these points, but continue to insist that eliminating discrimination is worth these considerable (and ever-increasing) costs. But anti-discrimination law is not necessary to accomplish that. Anti-lynching laws, yes. Laws against discriminatory provision of government services, particularly police protection, definitely. If gangs are selectively permitted by law to terrorize not only “uppity” blacks but also whites that deal with them in a non-discriminatory fashion, this is logically equivalent to a law requiring discrimination (it’s an unwritten law, enforced by unpaid police officers with the blessing of the state). Removing these injustices is absolutely necessary in order to put a stop to discrimination. But profit-seeking individuals who are not forced to discriminate will tend not to – they’ll lose potential profit by doing so, and nondiscriminating competitors will have an opportunity to whip them in the marketplace. If somehow every single local employer were absolutely committed to discrimination regardless of lost potential profit (which they weren’t, anywhere), that would simply present an opportunity for outsiders to either move in or export to the area and pick up that profit and start whipping the misguided locals in the marketplace. It was Jim Crow and its unofficial lynch-mob-enforced counterpart that prevented people from taking advantage of that opportunity to profit by practicing non-discrimination; remove them and nothing further needed to be done. If you don’t believe me, just ponder how many Irishmen are discriminated against these days, or even in 1964. Where was the earlier anti-discrimination law that made all the “no Irish need apply” signs disappear? It never existed, and it wasn’t needed.