Achieving Antidiscrimination Objectives Through

Achieving Antidiscrimination Objectives Through "Safe Harbor" Rules for Cases of Chronic Hiring Aversion

Description

As a general matter, we have pursued antidiscrimination goals through standards rather than rules. This is understandable because discrimination is normally a motivation—or intention—based inquiry. In the employment context, the law does not bar employer discipline or staff reductions; these are routine activities that the law does not ordinarily take cognizance of. The law generally bars such employer actions only when they are improperly motivated. Improper motivation or intention acts as an impeaching factor. In this manner, the tension between regulation and employer control of the workplace is cabined and minimized because discriminatory motives are thought to be counterproductive, simply unnecessary to achievement of legitimate business objectives. From the standpoint of employer prerogatives, the antidiscrimination command appears as a form of virtually costless regulation. Similarly, hard-and-fast rules are not relied on extensively in antidiscrimination law. There are two principal reasons for this legal-design preference. First, rules may under-enforce and over-enforce either because the rules are set too leniently or are set too stringently. It is difficult for the legislator or other policymaker at the outset to determine what is needed to achieve the antidiscrimination objective and what roadblocks will be encountered. Especially where it is difficult to revise legislation once enacted, delegating standard-setting to an administrative agency promotes a mechanism for fine-tuning the regulation. A second reason for preferring standards over rules is that rules will tend to make manifest the costs of regulation, that is, to highlight the interference with employer decision making that regulation entails. Such transparency may chill political support, and, hence, legislator willingness, to advance the regulatory scheme. From this political-economy standpoint, it may be far better to announce a standard—e.g., "thou shall not discriminate on the basis of race or gender, etc:"—and thus broadly delegate to the administrative agency or the courts the task of working out the actual rules through case-by-case determinations that will seek to control or influence behavior. Some aspects of antidiscrimination law reflect a mix of both approaches. For example, the disparate impact theory, or what Europeans call "indirect discrimination;' sets a standard, not a rule, but one that is purportedly based on objective factors: does the employer practice have a disproportionate impact on a statutorily protected group, such as blacks or women, and, if so, can the employer demonstrate that the practice is job-related and justified by business necessity. The employer's good faith does not provide a defense and its good or bad motivation is generally irrelevant to the inquiry. Similarly, in the "bona fide occupational qualification" (BFOQ) context, the inquiry is based on the employer's motivation, but there is a strong presumption of a violation because the employer has been shown to have been motivated by an improper group classification. The BFOQ concept allows only a very narrow defense in limited circumstances where race, gender, or other prohibited characteristic may have an especially strong predictive power and where the "essence of the business" cannot be served by other means. These exceptions are few and far between. The dominant approach of antidiscrimination law is to establish a standard of nondiscrimination and to attempt to implement that command by motive-based inquiry in agency or court adjudications. Some agencies have rulemaking authority but the rules tend to be broadly framed without further specifying the regulatory command.

Source Publication

Sharing the Gains of the U.S. Global Economy: Proceedings of the New York University 70th Annual Conference on Labor

Source Editors/Authors

Charlotte Garden

Publication Date

2021

Achieving Antidiscrimination Objectives Through

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