All Discrimination Is Not Created Equal

 

One of the marvels of liberal civilization is that — if one sees goods or services for sale — one can approach the proprietor with a reasonable expectation of doing business, no questions asked. Even expensive and important transactions can be handled without the relevant parties being required to connect at any deep level if they don’t wish to. We don’t need to offer specific justifications for our worth as human beings to every cashier; we just need to treat them decently and present cash. On the other hand, there’s nothing inherently wrong with having a business be more discriminating; in many cases, it’s not only natural, but highly beneficial and desired by all parties. Laws that prevent this may protect against some ugliness and harm by sellers, but also enable some despicable behavior on the part of customers, as we saw repeatedly during the baker/photographer/florist cases of the past few years.

This is among the prime reasons I’m opposed to our current regime of public accommodations laws, which privilege customers’ potential complaints of discrimination over any objection — real, imagined, honorable, or dishonorable — a business might have to participating. Likening a decades-long, state-enforced regime of racial discrimination in a region with a history of chattel slavery to someone not wishing to photograph lesbian nuptials isn’t just a stretch, it’s dishonest, and little-improved by evocations to slippery slopes. But, as the likely legal troubles faced by a ladies-only Uber competitor show, there is another reason to oppose such laws: they don’t let specialized services … specialize. Via the Boston Globe:

“Companies that provide a service need to accept potential customers without discriminating,” said Dahlia C. Rudavsky, is a partner in the Boston firm of Messing, Rudavsky & Weliky.

“There’s nothing wrong with advertising particularly to a female customer base,” Rudavsky said. “But if a company goes further and refuses to pick up a man, I think they’d potentially run into legal trouble.

Refusing to hire men as drivers could be an even clearer legal problem, said Sulman.

“To limit employees to one gender, you have to have what the law calls a bona fide occupational qualification. And that’s a really strict standard,” he said. “The law’s really tough on that. For gender, it’s not enough to say, ‘we really just want to have a female here because our customers prefer that to feel safer.’ ”

This is — to use a technical phrase — stupid, and on multiple levels. Besides denying customers a product they presumably desire and stamping-out upstart competition against an entrenched behemoth (irony noted, Uber), it’s also directly harmful to the very people anti-gender discrimination laws purport to be working for. Via Katherine Mangu Ward in Reason:

The same laws that are supposed to protect women are actually preventing women customers from getting what they want and potentially keeping some women out of the workforce altogether. This is an unavoidable consequence of using the blunt instrument of the law to prevent unsavory discriminatory behavior—you also remove all kinds of morally neutral or even praiseworthy decisions from the hands of citizens, workers, customers, and entrepreneurs.

…[T]he same forces that aim to protect women from discrimination wind up preventing customers and workers from making choices that would be more desirable for both parties—and command a premium to boot!

The Globe article notes that there is precedent for carving out exceptions for women’s-only services like this; indeed, Massachusetts law specifically exempted fitness facilities from such laws in reaction to a discriminatory lawsuit filed by a man.

But the more a law’s justice becomes contingent on exceptions, the weaker the case there is for that law to exist in the first place.

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  1. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Tom Meyer, Ed.: Laws that prevent this may protect against some ugliness and harm by sellers…

    Ugliness, perhaps, but sellers in a free market only harm themselves when they discriminate. They invite bad press, boycotts, and loss of customers to their competition. There is no need for law to prevent it.

    The only areas where businesses can get away with discrimination is in industries which are already highly regulated, therefore discriminatory practices can be written in to the laws. The obvious example is the Jim Crow laws, but also the practice of redlining in real estate development and bank loans.

    Even the Augusta National Golf Club has started accepting female members, and no law was required. They did it because they were at risk of losing business.

    • #1
  2. Mate De Inactive
    Mate De
    @MateDe

    Misthiocracy:

    Even the Augusta National Golf Club has started accepting female members, and no law was required. They did it because they were at risk of losing business.

    Augusta National Golf Club began accepting female members after enormous pressure put upon them by the Master’s and women’s groups to accept them. I never under why these women’s groups want to demand to be allowed into all male spaces. A better way, in my opinion, would be to create a club on par with Augusta. These groups could raise the funds and then have a club that admits men and women and beat Augusta at their own game. Instead of pushing their way into an already exisiting club. But we all know the left only wants to change, they rarely build anything from the ground up

    • #2
  3. Johnny Dubya Inactive
    Johnny Dubya
    @JohnnyDubya

    Does this mean that “All-Girls Garage” on the Velocity Channel is in danger of becoming co-ed or being cancelled?  When can I “look forward” to male waiters at Hooters?

    • #3
  4. Mate De Inactive
    Mate De
    @MateDe

    Tom, I am really glad you brought this up. For some reason I’ve been reading the comments section on Yahoo news on some of these religious freedom articles, (don’t ask me why). So many of the commenters really think that because a person goes into business that serves “the public” that they therefore revoke any constitutional rights that they may have had. They have no freedom of religious expression or speech or anything because they have a business, and that business serves “the public”.

    These people are tyrants, and ignorant to boot (the commenters I mean) . It’s amazing, they think because there is a sign on the door that says “open” and you can walk in, instantly means that they have to serve you, no matter what. Businesses have the right to deny services for all sorts of reasons why don’t these people get that?

    • #4
  5. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Johnny Dubya:Does this mean that “All-Girls Garage” on the Velocity Channel is in danger of becoming co-ed or being cancelled? When can I “look forward” to male waiters at Hooters?

    I am not really worried.  The girls will get there exception.  As long as you keep your discrimination to whites, males, Christians and or heterosexuals all is good.

    the point is that these people do not care about discrimination.  They care that it is the “right” kind of discrimination.  You know, the same discrimination / prejudices that they have. That is the point, Jim Crow wanted one type of discrimination, public accommodation laws want a different type that the elites like.

    • #5
  6. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Mate De:

    Misthiocracy:

    Even the Augusta National Golf Club has started accepting female members, and no law was required. They did it because they were at risk of losing business.

    Augusta National Golf Club began accepting female members after enormous pressure put upon them by the Master’s and women’s groups to accept them.

    Exactly. Pressure. Not law.

    I never under why these women’s groups want to demand to be allowed into all male spaces.

    a) It doesn’t really matter why they do it, as long as they do it peacefully and without governments enforcing their preference by force. That’s how culture changes in a free society.

    b) Augusta National didn’t simply cave to the pressure of feminist groups. They also looked around, did the math, and realized that it’s a very foolish policy in a world where the number of influential female executives, entrepreneurs, politicians, etc, is on the rise. They weren’t simply excluding women. They were excluding rich and powerful women. That’s just leaving money on the table.

    • #6
  7. Randy Weivoda Moderator
    Randy Weivoda
    @RandyWeivoda

    Except for very few exceptions (hospital emergency rooms, for one), I’d prefer to see public accommodation laws repealed.  The marketplace and social pressure will keep discriminatory businesses to a minimum, anyway.

    • #7
  8. Mate De Inactive
    Mate De
    @MateDe

    Misthiocracy:

    Exactly. Pressure. Not law.

    I agree. Better that kind of pressure than legal.

    a) It doesn’t really matter why they do it, as long as they do it peacefully and without governments enforcing their preference by force. That’s how culture changes in a free society.

    This I disagree with. Of course it matters why they do it. If you have a weekly guys only poker game, and I’m a chick and I want in because, well I want to. But you know it will change the whole atmosphere of the game making it less fun and it’s your poker game, so no chicks allowed. But I use all the influence at my disposal, maybe talk to the wife, the other guys wives, your boss. Whoever, until finally the pressure is on and you HAVE to let me in. Now I ask, Is anyone at the game going to be happy that I’m sitting there every week? Wouldn’t using that kind of pressure create an atmosphere of resentment?

    b) Augusta National didn’t simply cave to the pressure of feminist groups. They also looked around, did the math, and realized that it’s a very foolish policy in a world where the number of influential female executives, entrepreneurs, politicians, etc, is on the rise. They weren’t simply excluding women. They were excluding rich and powerful women. That’s just leaving money on the table.

    Since they only have about 3 or 4 female members I doubt they were just leaving money on the table.

    • #8
  9. mask Inactive
    mask
    @mask

    When lefties get upset because Brendan Eich was discriminated against and driven from his job then I’ll know they actually care about “discrimination” and “equality”.

    When lefties think that the ACLU cannot turn down the Westboro Baptists then I’ll know they believe the hogwash they spout.

    Until then it’s all the next level of identity politics as a weapon to punish people they don’t like.

    • #9
  10. Sabrdance Member
    Sabrdance
    @Sabrdance

    Of course.  Now that Katherine Mangu-Ward is inconvenienced, now it’s a problem.  The decades previous where every SoCon in the country told her this was coming, oh, that was foolish conspiracy mongering.

    Spare me.

    • #10
  11. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Anybody see a disconnect that men are just too dangerous to be allowed to drive womyn around, but not too dangerous to use their bathrooms?

    • #11
  12. Klaatu Inactive
    Klaatu
    @Klaatu

    This is a result of valuing equality over liberty and feelings over freedom.

    As with speech, the idea that being offended is a necessary price of being free is completely alien to a large portion of the population.

    • #12
  13. KC Mulville Inactive
    KC Mulville
    @KCMulville

    Misthiocracy: Ugliness, perhaps, but sellers in a free market only harm themselves when they discriminate. They invite bad press, boycotts, and loss of customers to their competition. There is no need for law to prevent it.

    Most of the businesses who want religious liberty already know that following their conscience may cost some customers. They may also pick up new customers. Case in point: Chik-Fil-A. I’m not much for fast food chicken, but when I heard about their stand on Christianity (including several cities who declared they didn’t want the stores in their locality), I applauded and now I give them my business.

    To someone who values religious liberty, any backlash is the cost of doing business. But the reason they call it “liberty” is that the calculation of profits v. conscience is up to the business owner … not the mayor, or governor, or local media. If he wants to lose business anyway (and keep his conscience clear in the process), that’s his or her decision.

    • #13
  14. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Randy Weivoda:Except for very few exceptions (hospital emergency rooms, for one), I’d prefer to see public accommodation laws repealed. The marketplace and social pressure will keep discriminatory businesses to a minimum, anyway.

    I would like the public accommodation laws to go entirely.  The problem with Jim Crow was that it codified discrimination in law forcing both public and private to discriminate according to the law.  The new public accommodation laws do the same.  It is just a new type of discrimination, which in practice is basically a discrimination against the majority.  What the laws should do is define what the government is allowed to act, which is no discrimination for any reason and let the private sector do as it pleases.  Market forces will sort it out.

    • #14
  15. Mate De Inactive
    Mate De
    @MateDe

    Steven Crowder kinda proved that public accomindation lawsuits are really only aimed at Christians.

    • #15
  16. Bob W Member
    Bob W
    @WBob

    I’ve read that many bars are no longer allowed to have “ladies nights”.

    • #16
  17. Tom Meyer, Ed. Contributor
    Tom Meyer, Ed.
    @tommeyer

    Sabrdance:Of course. Now that Katherine Mangu-Ward is inconvenienced, now it’s a problem. The decades previous where every SoCon in the country told her this was coming, oh, that was foolish conspiracy mongering.

    Not the case, and my apologies if I left the impression that it was. In the piece I cited, Mangu-Ward herself brings up the florists/bakers/photographers thing. And at few minutes Googling turned up this piece from her from a little over a year ago praising Patrick Stewart for opposing such laws in Ireland. The video link is broken there, but here’s a different report on the same story:

    https://www.youtube.com/watch?v=hhXzfeRK4-Y

    Reason’s been quite good on this subject for a long time.

    • #17
  18. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Mate De: If you have a weekly guys only poker game, and I’m a chick and I want in because, well I want to. But you know it will change the whole atmosphere of the game making it less fun and it’s your poker game, so no chicks allowed. But I use all the influence at my disposal, maybe talk to the wife, the other guys wives, your boss. Whoever, until finally the pressure is on and you HAVE to let me in. Now I ask, Is anyone at the game going to be happy that I’m sitting there every week? Wouldn’t using that kind of pressure create an atmosphere of resentment?

    a) I disagree that they HAVE to let you in. They’re being pressured, not forced. If it’s that important to them, they can choose to absorb the costs of excluding you (e.g. the nagging, finger-wagging, etc.).

    b) In my so-called “guy’s night” poker games, women have always been permitted, because we know they only ever want to show up if they’re excluded. If a wife/girlfriend does show up, invariably she finds it boring and she never comes again. Also, if the chick is fun, we have no problem taking her money. We’ve never had to ban a woman, but if we did it would be because she was awful, not because she was a woman.

    • #18
  19. Bob W Member
    Bob W
    @WBob

    It’s not as if it would be impossible to craft a law which would more clearly identify the exact kind of discrimination that we don’t want to allow, so as to not be so broad to cause unintended consequences.  But when these kinds of things come up, such as when Hooters doesn’t want to hire male servers, there seem to be just an acceptance of those unintended consequences. Prosecutors have discretion, but they often don’t use it. Legislators could try to clarify the law, but more often than not they don’t. Everyone just accepts stupid outcomes as if it’s the price we have to pay to get rid of real discrimination. After all, does anyone really feel strongly that an all female Uber is really doing something morally wrong that actually hurts someone? I bet no one does, and yet I would also bet they will lose in their bid to be able to freely operate. How do you explain that?

    • #19
  20. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Mate De: Since they only have about 3 or 4 female members I doubt they were just leaving money on the table.

    a) Of course they were. They were losing money from the number of men who refrained from joining because they didn’t want to be tainted with the bad PR of being members of an exclusive golf club.

    b) A forward-thinking business looks at the way the trends are going, not simply the state of the market at any given point. Excluding women when the trendlines indicate more people entering positions of power and wealth would be short-sighted. Excluding women made more sense when they were merely wives rather than employers, investors, and political decision-makers.

    • #20
  21. Mate De Inactive
    Mate De
    @MateDe

    Misthiocracy:

    a) I disagree that they HAVE to let you in. They’re being pressured, not forced. If it’s that important to them, they can choose to absorb the costs of excluding you (e.g. the nagging, finger-wagging, etc.).

    Yes, societal pressure isn’t governmental force but, come on, try having the full weight of every women’s organization, their allies and media come down on you, hard, and see if you would recognize the difference.

    b) In my so-called “guy’s night” poker games, women have always been permitted, because we know they only ever want to show up if they’re excluded.

    That wasn’t the hypothetical that I set up, unless you actually have a weekly poker night which would be funny, that I came up with that scenario but there was a ban on women in the hypothetical. Like McSorley’s in NYC back in the 70’s . No chicks. But you are right it does tend that if men are up to things that exclude women, we will eventually want in.

    If a wife/girlfriend does show up, invariably she finds it boring and she never comes again. Also, if the chick is fun, we have no problem taking her money. We’ve never had to ban a woman, but if we did it would be because she was awful, not because she was a woman.

    My point in my hypothetical, is that I understand the need for men’s only things and women only things. My only point is why do these women’s groups feel the need to barge into men only things. Create your own club or group and compete that way.

    • #21
  22. skipsul Inactive
    skipsul
    @skipsul

    I will (again) point out that I’ve been arguing this point for years here:

    http://ricochet.com/archives/defending-the-jerks-the-rights-of-people-to-be-racist/

    • #22
  23. Liz Member
    Liz
    @Liz

    Randy Weivoda:Except for very few exceptions (hospital emergency rooms, for one), I’d prefer to see public accommodation laws repealed. The marketplace and social pressure will keep discriminatory businesses to a minimum, anyway.

    I believe EMTs, doctors, the police, firemen, etc. are already required by law to serve any person  requiring aid.

    Regarding public accommodation laws, I agree completely. You could make the argument that they were necessary after Jim Crow, but their time is long past.

    • #23
  24. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Johnny Dubya:Does this mean that “All-Girls Garage” on the Velocity Channel is in danger of becoming co-ed or being cancelled? When can I “look forward” to male waiters at Hooters?

    A guy filed an employment discrimination suit against Hooters for failing to hire him. The lawsuit was “settled” in 2009, though I still think he didn’t really want to be a Hooters waiter, but that he wanted to accentuate the stupidity of the “nondiscrimination” laws.

    • #24
  25. Chuck Enfield Inactive
    Chuck Enfield
    @ChuckEnfield

    Fake John/Jane Galt: I would like the public accommodation laws to go entirely. The problem with Jim Crow was that it codified discrimination in law forcing both public and private to discriminate according to the law.

    I agree.  Not that ER’s should be allowed to discriminate, but that we shouldn’t have solutions without a problem. We’ll worry about ER’s discriminating when it happens.

    Fake John/Jane Galt: The new public accommodation laws do the same. It is just a new type of discrimination, which in practice is basically a discrimination against the majority.

    I need some help understanding this.  What majority group is being discriminated against and how?  I’m sure there’s some kind of disparate impact at play with these laws, but I’m dismissive of those arguments regardless who makes them.

    • #25
  26. Chuck Enfield Inactive
    Chuck Enfield
    @ChuckEnfield

    It’s been suggested that pressure, both moral and economic, is enough to make most people do the right thing.  While I agree, it’s important to remember that pressure can be applied to do the wrong thing too.

    It’s easy to blame pre-civil-rights-era discrimination on Jim Crow laws, but I’m doubtful that simply striking down those laws would have been sufficient to end the severe and widespread racial discrimination in the south.  Whites who violated the social norms of the era risked the loss of their social standing, property, and even their lives.  Widespread social pressure to discriminate against blacks went hand in hand with legislation requiring it.  Large enough majorities don’t need the force of law to achieve tyranny.

    FWIW, I think discrimination to that extent is gone forever in the US and that public accommodation laws can be eliminated, but I reserve the right to change my mind in the event that I’m proven wrong. Never mind that I think such anti-discrimination laws are unconstitutional. That’s not much of an obstacle these days.

    • #26
  27. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Chuck Enfield:

    Fake John/Jane Galt: I would like the public accommodation laws to go entirely. The problem with Jim Crow was that it codified discrimination in law forcing both public and private to discriminate according to the law.

    I agree. Not that ER’s should be allowed to discriminate, but that we shouldn’t have solutions without a problem. We’ll worry about ER’s discriminating when it happens.

    Fake John/Jane Galt: The new public accommodation laws do the same. It is just a new type of discrimination, which in practice is basically a discrimination against the majority.

    I need some help understanding this. What majority group is being discriminated against and how? I’m sure there’s some kind of disparate impact at play with these laws, but I’m dismissive of those arguments regardless who makes them.

    Then you are dismissive and there is no reason to discuss.

    • #27
  28. Tom Meyer, Ed. Contributor
    Tom Meyer, Ed.
    @tommeyer

    Chuck Enfield:It’s been suggested that pressure, both moral and economic, is enough to make most people do the right thing. While I agree, it’s important to remember that pressure can be applied to do the wrong thing too.

    Completely agreed.

    It’s easy to blame pre-civil-rights-era discrimination on Jim Crow laws, but I’m doubtful that simply striking down those laws would have been sufficient to end the severe and widespread racial discrimination in the south. Whites who violated the social norms of the era risked the loss of their social standing, property, and even their lives. Widespread social pressure to discriminate against blacks went hand in hand with legislation requiring it. Large enough majorities don’t need the force of law to achieve tyranny.

    It’s hard to know for sure, but I’d wager you’re correct. Under those specific circumstances, strong public accomodations laws were likely necessary (or, at least, high beneficial). The trick is putting them back in the box afterward.

    • #28
  29. skipsul Inactive
    skipsul
    @skipsul

    Tom Meyer, Ed.:

    Chuck Enfield:It’s been suggested that pressure, both moral and economic, is enough to make most people do the right thing. While I agree, it’s important to remember that pressure can be applied to do the wrong thing too.

    Completely agreed.

    It’s easy to blame pre-civil-rights-era discrimination on Jim Crow laws, but I’m doubtful that simply striking down those laws would have been sufficient to end the severe and widespread racial discrimination in the south. Whites who violated the social norms of the era risked the loss of their social standing, property, and even their lives. Widespread social pressure to discriminate against blacks went hand in hand with legislation requiring it. Large enough majorities don’t need the force of law to achieve tyranny.

    It’s hard to know for sure, but I’d wager you’re correct. Under those specific circumstances, strong public accomodations laws were likely necessary (or, at least, high beneficial). The trick is putting them back in the box afterward.

    Won’t happen, too many special interests have built themselves around these racial and sexual preference set-asides.  You expect them to give that up?  Jim Crow was a protection racket and it took 70 years to dislodge that against massive national pressure.

    • #29
  30. Chuck Enfield Inactive
    Chuck Enfield
    @ChuckEnfield

    skipsul: Won’t happen, too many special interests have built themselves around these racial and sexual preference set-asides. You expect them to give that up? Jim Crow was a protection racket and it took 70 years to dislodge that against massive national pressure.

    Unfortunately, I suspect you’re right.

    BTW, great post.  I missed it the first time.

    • #30

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