Bilked by Civil Rights

These days, hiring and firing is more dangerous than a midnight walk in Central Park. Let an employer dis' the wrong guy, and he faces near ruin through bias complaints and civil rights lawsuits. If the employee's lawyer can turn the action into the liberal's favorite, a class action suit, it threatens bankruptcy.

Off the record, small businessmen agree that civil rights kills jobs and entrepreneurship. It's not the quotas these rights imply so much as the charge of "discrimination." It's an accusation that can be hurled to terrible effect by nearly everyone, except qualified, straight, white, abled males.

Employees are most likely to file discrimination complaints when the boss lets them go. Termination is humiliating, so when the boss fires us, we want to blame anyone but ourselves. We tend not to walk away saying, "I've learned a valuable lesson. No more goofing off for me."

In the old days, the free market forced people to pick themselves up, brush themselves off, and start combing the want ads. These days, they place a collect call to the Equal Employment Opportunity Commission in Washington, D.C. Women charge sex discrimination, blacks charge racism, and anyone with a limp charges "ableism."

Recent disability guidelines illustrate the problem. Mental illness is, of course, protected under the Americans With Disabilities Act. You cannot fire or refuse to hire a person who is "otherwise qualified" by the government's loony standards.

But what is official mental illness? The EEOC suggests we consult the Diagnostic and Statistical Manual of Mental Disorders. According to the DSM, protected symptoms include "confused thinking," "consistent tardiness or absences," "lack of cooperation or inability to work with co-workers," "reduced interest in one's work," and "problems concentrating."

Before the ADA, these were reasons for booting a person off the payroll (unless he happened to work for the federal government). Today, they bestow rights against employers, rights that sane people do not have. Nor does it count when ADA-afflicted businessmen themselves experience symptoms of DSM mental illness: "anxiety, fear, anger, suspicion."

It's crazy to think that the authors and enforcers of the ADA are concerned with quadriplegics. Their real goal is sinister to the core: removing the vestiges of employers' legal rights. Just as landlords no longer have an effective legal right to evict non-paying tenants, so employers cannot shop for the best workers. In this subtle form of socialism, nearly everyone has a veto over the free choices of the capital owner. The workplace is ruled by victimocracy.

The response of the private sector has been job-bias arbitration contracts. In many companies, new employees must sign a promise to settle all job disputes in the private courts that operate according to the efficient and rational standards of the American Arbitration Association. If a person is demoted, not promoted, "harassed," or fired, he must file and settle complaints outside the government court system.

Ideally, all civil rights laws would be repealed and a free market in labor restored. Absent that, mandatory arbitration has proven useful in keeping labor markets somewhat free. Private courts lower costs for everyone, and prevent the absurdities of class action suits. The case of Denny's is illustrative. Without ever admitting guilt, Denny's had to pay a $54 million settlement. Juries too award absurd levels.

It is easy to see why 100 large companies have already made the switch, and thereby avoided arbitrary and capricious government justice. In five years, half of all employees may be bound by such contracts.

But do these contracts circumvent the letter and spirit of civil rights laws? Of course they do. That's what makes them so admirable. They restore a modicum of employer autonomy and consumer sovereignty.

Civil rights socialists want an America where employers have no rights, and any plaintiff hollering "discrimination!" can retire in luxury (not to speak of his lawyer). They hate arbitration contracts because they represent market-based authority; only the power of the central state is to count.

That's why socialists Russell D. Feingold (D.-Wisc.) in the Senate and Patricia Schroeder (D.-Col.) in the House have introduced anti-arbitration legislation. They would forbid obligatory arbitration altogether, and coerce business back into the government system.

If they succeed, the consequences will be horrendous. Until recently the ADA applied to firms with 25 or more employees. On July 26th, more than a 100,000 firms with as few as 15 employees came under this law.

Just as business has found a way to start hiring again, and reestablish a meritocracy within the firm, Feingold and Schroeder want to reimpose quotas and government intimidation. Instead of the work ethic, they favor the robbery ethic.

No wonder employers fear to run job ads. They have to hire every applicant or risk a visit from Janet Reno. So, more and more bosses reveal new positions only to friends and associates. Liberals say they don't like the old-boy network. Anti-discrimination law makes it essential.

Civil-rights law is a peculiarly American path to socialism. Like all forms of socialism, it overthrows the freedoms of association and contract. How crucial are these to preserving prosperity, liberty, and civilization itself? Indispensable, as we will see if the central government gets its way.