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On Protected Classes and Discrimination in the Workplace

Even ducks discriminate
"We don't like your kind around here, goldie"
Before I get started, let me be perfectly clear about one thing: I support anti-discrimination laws such as the Equal Pay Act of 1963, the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and of course the Americans with Disabilities Act of 1990. In fact, I would expand them to include sexual orientation as a protected class, something the federal government has refused to do. These laws are not without controversy or negative side effects--as I am about to illustrate--but in the end, I do believe they do more good than harm and am not advocating their repeal. The problem is that these laws can be abused and taken too far, and both their defenders and their opponents tend to take a black-and-white, overly simplistic view.

Let's quickly overview how these laws work. The idea is that businesses are not allowed to discriminate in the workplace against a set of "protected classes," which under federal law includes race, color, religion, national origin, age (over 40), gender, disability status, and veteran status. Under state and municipal laws, there can be many more. This means, for example, that a company cannot refuse to hire somebody simply because he or she is Asian or walks with a cane. It also means that a company cannot refuse a customer based on his or her religion or fail to make reasonable accomodations like wheelchair ramps for people with disabilities.

This is dangerous ground for the law to cover, because it reeks of social engineering and takes away certain liberties from business owners. However, as I said, the pros outweigh the cons. People with disabilities, both mental and physical, can now live a much more normal life and those who have been the victims of racism have legal recourse they didn't have before. I can sympathize with those (like Rand Paul) who have a problem with these laws on strictly Libertarian principles--and I will not fall into the lazy rhetorical trap of calling them bigotted racists--but I still can't agree with them. There is no doubt in my mind that anti-discrimination laws have made this country a better place to live.

Clowns
They wanted to fire Captain Frowny, but they didn't want to get sued because depression is covered under the ADA
Still, these laws are not perfect. It is pathetically easy to use and abuse them for personal gain. Additionally, employers get caught in a trap: once they hire somebody who is obviously a member of a protected class, it becomes incredibly difficult to terminate (or even demote) that person without being exposed to a potential lawsuit. Indeed, it is simpler for some people to believe that they have been the victims of discrimination than to admit that they did anything wrong. I'm a relatively young and healthy white male, and even I understand the feeling of getting fired and wanting to rationalize it so that my employers are at fault.

Unfortunately, these cases often involve a lot of heresay and little concrete evidence, even in a relatively obvious case like Brady v. Wal-Mart Stores, Inc., in which a man named Patrick Brady, who suffers from cerebral palsy, was clearly treated inappropriately. The burden of proof in these cases usually rests with the business being litigated against, and since there is usually very little evidence, nearly all anti-discrimination lawsuits end in settlements. In the rare instance of a business taking it all the way to trial (and appeal), which tends to happen when there are serious, far-reaching ramifications for a loss, the business almost always loses.

Sometimes, there can be no logical explanation for an anti-discrimination lawsuit except for somebody trying to make a quick buck. Last Monday, for example, the Ninth Circuit United States Court of Appeals decided the case of Antoninetti v. Chipotle Mexican Grill, Inc., a case with expensive repurcussions for millions of businesses in this country. The plaintiff in the case, Maurizio Antoninetti, is wheelchair-bound and decided to sue Chipotle because he could not see over the counter, where the food is prepared. The court ruled that businesses that display the food being made for their customers are now required by the Americans with Disabilities Act to ensure that wheelchair-bound people can also see the food being prepared. This is not just a requirement for new businesses, but a requirement for all businesses, which now means that Chipotle, in addition to paying the cost of the suit, must spend millions of dollars renovating all of their locations, as must any other business that uses such a model. I'm sorry, but I don't believe Antoninetti's quality of life was in jeopardy just because he couldn't see his burrito being folded (and yes, before you ask, he could see the ingredient list that is displayed high above the counter).

Jesus statue getting struck by lightning
Mother nature commits hate crime
This doesn't even get into one of the bastard offshoots of the legal notion of protected classes: hate crime legislation. I've discussed hate speech before, but sufficed to say, the idea that people should be punished more based solely on their motive does not promote equality. Hate crime laws do quite the opposite, really, because they force certain classes of people to be permanently stigmatized by the law. Unlike anti-discrimination laws, I do not believe that hate crime laws do any good whatsoever, because they force the courts to discriminate.

There are also certain states and municipalities that take the idea of protected classes a little too far. While I support the idea of sexual orientation being a protected class, as it is in many places throughout the country, I don't support making chronic alcoholism, transvestism, citizenship, homelessness, pedophilia, obesity, or drug addiction fall under the umbrella of protected classes. And yet, if you look hard enough, you'll find people either lobbying to make these things protected or you will find cities where they already are.

My wife recently had a conversation with a human resources manager who had been to a seminar where it was discussed that, among the list of protected classes, they should add attitude. Attitude? Yes, some people are seriously considering the idea that a person's attitude must be protected, that an employer cannot discriminate between prospective employees on the basis of attitude and that they cannot kick people out of their establishments because of it either. This is beyond absurd, and clear evidence that there is a slippery slope somewhere that many people have started sliding down.

Entitlement
Having a small penis does not make you handicapped
And that's where the real problem lies, in the social realm rather than the legal one. The civil rights movement, which culminated in the biggest anti-discrimination law of all, the Civil Rights Act of 1964, has done some harm to our social consciousness. Again, I'd like to reiterate that I support the Civil Rights Act and believe it has done far more good than harm. Still, you can't deny that it has raised a generation that now believes it is entitled to anything it wants. No, you shouldn't be discriminated against if you are black, red, yellow, or green, and no, you shouldn't be discriminated against if you have to wash your hands three times before leaving the bathroom.

But we don't need to make accomodations for blind people who wish to become airline pilots. Your life will go on if you are too short or handicapped to see the sandwich artist at Subway put lettuce on your cold cut combo. If you tattooed your eyeballs during your self-mutilating emo years and carved obscenities into your arms, it makes sense that you'd have a hard time getting a job as a greeter at Universal Studios. We all have problems, and regardless of what our parents and life coaches may have told us, we cannot be anything we want to be. As a diabetic, I know I can never become a professional competitive eating champion, but I don't feel the need to sue the International Federation of Competitive Eating because of it. And just because you're a Hispanic transexual with rickets, it doesn't mean you can't get fired for being late every day. As much as the hippy generation would tell you otherwise, you really do have to conform--at least a little bit--to standards of decency, decorum, attitude, and behavior if you wish to hold a job and coexist with the rest of us here on planet Earth.



-e. magill 8/03/2010








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