Monday, February 21, 2011

The odd loophole in anti-discrimination laws.

Before I get into the main point I want to take a detour and make it clear that I do not believe anti-discrimination laws should exist for private organizations or businesses. If I want to keep my workplace a hospitable place by banning fundamentalist Republicans, it ought to be right. Just as workers should have the right to refuse to work for me, I should have the right to refuse to hire them. Just as they can refuse for any damn reason that strikes their fancy, I too should have the right to refuse to hire them for whatever whim comes to mind, rational or irrational. But, none of this applies to any government agency or any private organization or business that receives taxpayer funds for services offered to the government, or on behalf of the government.

Like it or not, that's my conclusion. But it isn't the main point. The main point is the oddity of the laws on discrimination.

What brought this to mind was a straight man who went to the absurd Creationist Museum, which certainly is no museum by any means. According WAVE television a straight man went to a dinner at the museum, with tickets he paid for, and was refused admission because the museum believed him to be "flamboyantly gay." A local gay rights group said of this, that the actions were completely legal because there are NO laws forbidding discrimination on the basis of perceived sexual orientation.

To make it worse, the cheap fundamentalists who run the loony bin museum won't refund the ticket costs even though they were the ones who refused to fulfill the contract that is implied with the purchase of a ticket. At the very least they ought to refund the tickets, otherwise they are just thieves. But I don't put much stock in the morality of fundamentalists. I know them too well.

But this is what got me thinking: if the law does forbid discrimination on the basis of perceived sexual orientation does that pretty much eviscerate all anti-disrimination laws? Take your typical, closet Klanner for instance, lamenting the loss of white America, reading his Bible—literally of course—and whining about Mexicans. He manages an apartment building for someone and a black man wants to rent a flat. He, as a good Christian warrior for white America, refuses the man. Questioned later he simply says: "But I didn't care that he was black, honestly. I thought he was a fag." So, he admits to discrimination but not on the basis of a protected status.

Don't want Catholics, and don't want to violate the law saying you can't discriminate on the basis of religion, just pretend you thought they were gay. Don't like women in the workplace, claim you thought the applicant was a lesbian. Express really strong anti-gay views and bigotry and it would give substance to your claim. And for lots of bigots, they wouldn't have to pretend. Bigots in one category tend to be bigots in multiple categories.

I guess one could close that loophole but until every imaginable category of humanity is covered there will always be loopholes.

I prefer to get rid of the laws and trust the public. For the most part the public will get it right, admittedly the American South is likely to be the exception. Centuries of in-breeding and hours or reading the Bible will do that to people.

Consider how the public will act in the more civilized parts of the country. A restaurant refuses to serve black patrons and this becomes known. I suspect a very loud, very obvious picket-line, low sales and a bad knock in the pocketbook.

I remember, in my misspent youth, when Anita Bryant was on the rampage scapegoating gay people for every social ill. No doubt they were also responsible for her divorce and drug addiction as well. Anita came to Chicago to perform at the large Shriner auditorium, Medina Temple. Anita was the hot ticket in the Bible-belt with her campaigns against sinners, well not all sinners, just gay ones. So when she ventured into the civilized North she was not quite as welcomed as she was on the Sawdust Trail.

Several thousand unhappy victims of bigotry and loads of decent people who hate prejudice showed up and started picketing the auditorium. Chicago's finest forced all picketers to the opposite side of the street where the sidewalks for the entire four block radius around the Temple were packed with protesters. Now and then a car would pull up and let someone out, who ran into the Temple to hear Anita sing. But the vast auditorium was pretty much empty. If memory serves me right there were about 50 people inside an auditorium that would hold thousands. It was a flop for Anita, sort of like her marriage and her ministry—disaster that befell her before she could blame it on gay marriage.

On the other hand, very few people would argue that a gym for women has to admit men and let them share the facilities, including the showers. Similarly, a gay nudist resort is not going to find itself surrounded by heterosexuals with their children, picketing, demanding to get in. But a local grocery store that said it didn't want to hire Christians would probably feel the brunt of public opinion. On a whole I think public reaction would take more of this.

And, before someone hollers about the Deep South and Jim Crow, I see that as an exception. Let me explain why. The above scenarios are assumed to take place in a culture where property rights are respected, and when they aren't the police will protect the property, as well as the rights of the protesters.

In the South that was not the case. In reality a business in the South that integrated could easily find itself facing the violence of the Klan while the police, often members of the Klan, would look the other way. In the South bigotry was forced on unwilling participants by a coalition of bigots which included cops, politicians and the local rednecks. They would use violence to prevent peaceful cooperation between the races. Standing up to Jim Crow in the South put one's life in danger and no government agency in those states would defend the victims of the Klan, and the other racist groups that permeated Southern culture.

But, in a society where the police will protect the rights of all people then boycotts are the proper way to bring bigots to their knees. And it is the most effective one as well.

In the few cases where it doesn't work, there are still benefits. Concentrating all the bigots and assholes in one business makes all the other workplaces nice places to be. If one grocery store hires the bigots and caters to bigots, and there are enough of these people think of all the other decent people who won't have to have anything to do with these folks. If there are racists working there then there will be fewer racists working elsewhere, making those work places nicer places to be.

Of course, the bigoted business would have higher search costs for employees as they have to exclude a huge number of possible employees from consideration. They give their non-bigoted rivals a competitive edge. Bigotry tends not to be financially feasible except under fleeting and rare circumstances, when a market is free and the police just. This is why all the bigots in history had to rig markets and use government force to impose bigotry on the populace. Without that force the natural tendency is to make the most profitable exchange, regardless of the inconsequential characteristics that rile up the bigots.

To a very large degree bigotry in the marketplace is pretty much like that other bugaboo—monopoly. When it exists naturally, that is without state support or law enforcing it, it tends to be fleeing and rare. The presence of either opens up too many profit opportunities to non-bigoted entrepreneurs. This is precisely the reason that, even during the deepest years of anti-gay oppression there were always private businesses and clubs that would cater to the social outcasts. This is the reason that today, when the vast number of government bodies refuse to recognize gay relationships, that most of the largest corporations in America do recognize them, and there is widespread acceptance in the private sector. Bigotry doesn't flourish well in the private sector or in depoliticized markets. It takes the raw, rabid hand of government force to make sure bigotry gets it way.

Labels: , ,