An essential corollary of freedom of association.
Repeal the Americans With Disabilities Act
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.
By Dmitry Chernikov, 10 years April 7, 2012 ago
Yet Another Unintended Consequence of Anti-Discrimination Laws
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.
By Dmitry Chernikov, 9 years June 5, 2013 ago
Priests of Non-Discrimination
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?
By Dmitry Chernikov, 9 years June 24, 2013 ago
Re: Judge Orders Colorado Bakery to Cater for Same-Sex Weddings
"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.
By Dmitry Chernikov, 8 years December 9, 2013 ago
Analysis: Court's Decision on Bakery's "Discrimination"
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.
By Dmitry Chernikov, 8 years December 18, 2013 ago
Abstaining from Culture Wars As a Libertarian
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.
By Dmitry Chernikov, 8 years March 13, 2014 ago
"Consumer Sovereignty" Is a Problematic Term
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.
Discrimination Races and Nations
Universal Anti-Discriminationism
A peculiar strand of thought has appeared among the conservatives. Anti-discrimination laws, they say, are unfair. It is certainly good to outlaw discrimination against blacks and homosexuals — in saying that, we, the conservatives, are simply faithfully preserving the old victories of the left, now status quo — but what of discrimination against Christians? Isn't that also morally dubious? In fact, the conservatives continue, in regard to identity politics, every group deserves equal protection against discrimination.
Case in point: Selwyn Duke writes with apparent outrage: "Imagine you apply for a college program, only to be denied entry because you believe in God. And the kicker is how school administrators knew about your faith."
Even a minute amount of reflection shows this attitude to be untenable. The left which originated non-discrimination laws, affirmative action, diversity training, and all the rest has always distinguished between "official" protected victim groups like the blacks and official oppressor groups like your standard straight white male Christians.
The Old Left held that there were basically two classes engaged in their class war: the proletarians and the bourgeoisie or capitalists. Whatever the faults of this ideology, at least it was clear and unambiguous. The lines were well-drawn.
The New Left decided to complicate things considerably. It fractured society into a vast variety of groups battling one another seemingly chaotically. Though not quite: the two main groups — oppressors and oppressed — had remained, yet each oppressed group was now oppressed in its own unique way. Blacks had different grievances than Latinos than homosexuals than the poor than union members, etc.
Regardless, when a black person was discriminated against, this poor oppressed victim suffered a monstrous injustice; but when a Christian was discriminated against, this evil irrational oppressor-bastard only got what he had coming to him all along, i.e., what he so richly, according to his wicked personality and unjust privilege, deserved.
Thus, the left never intended for all discriminators to be equally bad. When an employer hired women, thereby refraining from hiring men, he was praised. If he hired men, symmetrically refraining from hiring women, he was condemned. This is not a double standard of any sort, because the poor virtuous women are oppressed by rich corrupt men, and for that reason men deserved to suffer and were required to atone, while the women — quite unequally and so entirely by design — would be given every advantage.
The conservatives apparently saw the ideological silliness at work here and attempted an unusual counterattack. Let's bring this matter to a reductio ad absurdum, they decided. Let no one whatsoever, black or white, they said, be discriminated against. No decision by anyone in any situation could take race or sex or whatever into account.
Again, the left had a theory of classes and class warfare. It may have been wrong, but it was an idea. The conservatives imploded this theory from within, replacing it, as is their penchant, with no idea whatsoever by embracing the insanity and going all the way to complete nonsense.
A landlord on this conservative interpretation still cannot discriminate against blacks. But also he cannot discriminate against whites, either. It is clear that this policy completely defeats the purpose of the left's distinction between what it imagined were the genuine oppressed and oppressors and its efforts to boost the former and to bring down the latter.
Absent some idea of social justice, of victims and villains, what is now universal non-discriminationism (UND) makes exactly zero sense from any point of view. If a landlord rents an apartment to a black person (a "plus"), then he by that very fact rejects an equal to him in all respects — in terms of degree of victimhood and suchlike — white person (a "minus"). And vice versa. An apartment is a scarce resource; there are only so many apartments in the landlord's housing development; so, from the social point of view the overall "justice" is zero; the pluses and minuses cancel each other out.
But if we add the landlord to society, we immediately see that his ability and pleasure to choose his tenants, given UND, is curtailed. He no longer is able to run his business as efficiently as he can. The landlord is harmed, and so are his customers whom he is unable to serve to the best of his ability. The result: net harm to society overall, all things considered.
Again, given that we have done away with the idea of institutional injustice against the "accredited" victim groups, discriminating against Smith because he is black is neither more nor less unjust than discriminating against Jones because he is a credit risk. The discriminator — whoever he might be — simply makes choices according to his own desires. Surely, destroying all discrimination entails the destruction of humanity as a race of choosers; hence, since all discrimination cannot be equally vicious, it must all be equally Ok.
Perhaps conservatives were hoping that everyone would see this reductio, have a good laugh, and forget about this nonsense. But so far, their hopes have not been vindicated.
Discrimination Homosexuality
Gay Marriage Does Not Fit into What Marriage Is
Ian Millhiser brings up Justice Ginsburg's argument in favor of gay marriage:
[Same-sex couples] wouldn't be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn't possible.
Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship.
Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.
There was a change in the institution of marriage to make it egalitarian when it wasn't egalitarian. And same-sex unions wouldn't — wouldn't fit into what marriage was once.
Ian goes on: the law "presumed that the wife was both financially and sexually subservient to the husband. … But marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down."
Now first of all, let's admit that while marriage is a Catholic sacrament, and may save one's soul, and many other wonderful things, the civil or common law is not concerned with such subtle matters of divine grace but with more mundane issues of human nature, that is, of man as he (and she) is in his own natural state. As a result, how marriage is to be conceived should be discussed by considering solely natural law.
And regarding that, marriage exists in law to order human reproduction. There are two aspects of it: unitive or the relations between the husband and wife; and procreative or the relations between the parents and children.
The unitive aspect of civil marriage is to discourage faithless love, thereby promiscuity, thereby heartbreak. Both men and women benefit tremendously from the stability, sexual, emotional, intellectual, that marriage brings to their lives and frees them to pursue happiness rightly understood, and the law is concerned to foster such stability.
I mean, who can doubt that until a man marries a woman, he is essentially desperate and capable of all manner of self- and other-destructive things?
For male homosexuals, there is no love, even faithless kind: it's all about lust: the very idea that two gays can fall in love with each other defies reason. Lesbianism may be different; but lesbianism seems so preposterous that it only makes sense in pornography. So, the unitive function of marriage is not served by "equality."
The procreative aspect of civil marriage is to assure legitimacy, that children are biologically one's own, and provide a home for those children that features both unconditional nurturing from the mother and conditional guidance from the father.
But gays cannot have children, at least at the current level of biotechnology. Nor are they capable of providing a suitable home for adopted children; therefore, even with adoption properly privatized, no adoption agency can be permitted to send its kids to homosexuals.
It is these concerns, and not whether the wife should or should not be "financially and sexually" subservient to the husband that suggest that society ought not to recognize gay marriage as an institution as special as normal marriage.
Long March Through the Institutions
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.