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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.