Antidiscrimination in Employment: The Simple, the Complex, and the Paradoxical

Antidiscrimination in Employment: The Simple, the Complex, and the Paradoxical

Description

A paradox lies at the heart of employment discrimination law. Why would an employer choose to discriminate against any qualified potential employee? After all, any unilateral employer decision to limit the range of potential qualified applicants necessarily constricts the supply of labor. Any employer indulging such a “taste for discrimination” on the basis of antipathy for a particular group (as with black applicants) or a mistaken indulgence in stereotyped thinking about the abilities of a group to perform certain work (as with women) would find the applicant pool limited and the cost of labor correspondingly increased. To the extent that such discriminatory behavior was widespread, the wage premium to the preferred group would also then rise. Under such circumstances, the market should serve as a strong corrective force. Any employer freed from the stereotyped rejection of qualified employees would find a broader pool of potential workers and would presumably save on labor costs. Without having to pay the premium for this undesirable indulgence in discrimination, the tolerant employer would have an advantage in the market for goods and services. Generalized across the economy, a competitive market should squeeze the margins necessary for any employer’s willingness to indulge inefficient discrimination. Despite the logic of the market, discrimination abounds in employment markets around the world. Employers may be cushioned from market accountability by customer prejudices, co-worker prejudices or even legalized mechanisms of discrimination, as in the Jim Crow South, that prevented potential black employees from acquiring the skills necessary to participate in the workforce. Hence the need for employment discrimination laws. By prohibiting employers from using certain protected characteristics as a basis for employment decisions, these laws condemn the subjugation of protected groups for a variety of reasons—prejudice, fear, unconscious motivations, cognitive distortions and assumed characteristics. They even prohibit capitulation to these biases among co-workers, customers or the public at large. This anti-subjugation principle is rooted in the promise of the Equal Protection Clause and has been applied, through the Commerce Clause, to correct discriminatory distortions in the private markets. But employment discrimination laws are not merely exhortations against the wrongs occasioned by retrograde views. All employment discrimination laws are, at least implicitly, redistributive. There is a tacit understanding that there are classes of persons who have benefitted from the privileged social status of their group and corresponding classes who are on aggregate worse off. Without mandating redistribution, the cumulative effect of employment discrimination laws must be to redress some of the historic advantages and disadvantages resulting from ingrained past injustices. After all, there would be no compelling reason for antidiscrimination laws’ sweeping intrusion into market-based employment decisions about hiring, promotion and pay, unless there were a corresponding belief that the revealed market preferences are somehow wrong. Even Title VII of the Civil Rights Act of 1964, the most axiomatic of non-discrimination laws, was more than a statement that hostility to blacks in the workplace is opprobrious. Rather, advocates hoped that Title VII would also address the lack of employment opportunity for blacks. First and foremost among these consequences was the denial of jobs, promotions and income as a result of invidious discrimination. While even Title VII claims occasionally floundered when they forced the courts to confront directly the question of who should bear the costs of remedying past racial discrimination, the tension between the anti-subordination and redistributive goals of employment discrimination law reveal themselves most clearly in the jurisprudence of other protected classes: pregnant women, older workers and people with disabilities. In place of the original civil rights syllogism, which argued that but for invidious discrimination, employers would treat members of protected classes just like any other job candidate or employee, these new protected classes require not equal treatment, but rather special treatment to ensure equal opportunities for workforce participation. In these cases, discrimination might be economically rational. Thus, for example, even benevolent employers might worry about the productivity losses inherent in maternity leave (whether paid or unpaid) or the fixed costs of making an office or store accessible to an employee with a disability. With the passage of the Pregnancy Discrimination Act (PDA), the Age Discrimination Employment Act (ADEA) and the Americans with Disabilities Act (ADA), antidiscrimination law was forced to confront its redistributive norm and to struggle with the difficult question of who should bear the costs of providing equal opportunity. In this chapter, we explore at some length the problems of pregnancy discrimination, age discrimination and disability discrimination to highlight claims that are not easily resolved within the traditional civil rights paradigm of antidiscrimination law. These claims strain the boundaries of antidiscrimination law because they push to the foreground questions of cost allocation and the accompanying policy judgments that tax the institutional capabilities of courts. Instead of relying on a conventional equality of treatment model of antidiscrimination, which focuses on combating discrimination that was at its core economically irrational, newer legislation sought to provide workforce opportunities to specific groups deemed vulnerable in the labor market, raising difficult policy issues not easily handled by employment discrimination law. Section I of this chapter will offer a broad overview of the development of employment discrimination law as it moves from problems of subordination and irrational discrimination to issues of redistribution and economically rational discrimination. Section II addresses the strains placed on employment discrimination law as it confronted demands of accommodation increasingly removed from a simple but-for model, looking specifically at the PDA, the ADEA, and the ADA. Section III offers suggestions for future development of this area of law. Section IV concludes.

Source Publication

Research Handbook on the Economics of Labor and Employment Law

Source Editors/Authors

Cynthia L. Estlund, Michael L. Wachter

Publication Date

2012

Antidiscrimination in Employment: The Simple, the Complex, and the Paradoxical

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