The political process always manages to turn idealistic dreams inside out. For an excellent example, look no further than the civil rights laws passed in the last 40 years.
For almost a century before 1964, governments in many southern states forced segregation on the people. Government prohibited companies from providing racially integrated facilities for their employees or customers. Whites and blacks were forbidden by government to sit together in restaurants or to use the same restrooms and drinking fountains and in many cases were forbidden to shop together or work together.
Civil rights advocates fought to repeal these state Jim Crow laws, but they failed. So they appealed to the federal government, which responded with the Civil Rights Act of 1964.
But this didn’t simply repeal state laws compelling segregation. It prohibited racial segregation voluntary or otherwise. Overnight, what had been mandatory became forbidden. Neither before nor after the Civil Rights Act were people free to make their own decisions about whom they would associate with.
The civil rights movement wasn’t opposed to using government to coerce people. It merely wanted the government to aim its force in a new direction.
Although the activists believed coercion served the noble objective of bringing the races closer together, it was coercion nonetheless.
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The Giant Begins to Grow
And coercive laws never stand still. No matter what a law’s backers say at the time of passage, the law always stretches in surprising directions. The expansion occurs on at least two fronts:
- The law almost always is enforced more broadly than intended;
- When government benefits one group, other groups are encouraged to seek similar benefits.
And this is what happened to the civil rights laws.
In the first regard, the bureaucrats and courts set out to enforce the laws zealously, seeking to root out any kind of discrimination even though ending segregation, not discrimination, was the motive behind the original law. Companies were ordered not to consider race in any way when making hiring decisions.
But usually the reasons for a business decision are hard to prove. Unless a businessman is a noisy bigot, who can say whether racial discrimination has affected his decision to hire someone?
To avoid having to read minds, the enforcers examined results to determine whether discrimination had occurred. If you didn’t have a suitable racial mix in your workforce (or even among your customers), you were assumed to be discriminating and the burden of proof was on you to prove otherwise.
So an employer could avoid charges of discrimination only by, in fact, discriminating by using quotas to assure that he hired the right number of people of the right races even though the original sponsors of the law had sworn that quotas were no part of it. The law against segregation had been transformed into a law requiring discrimination.
The law also encouraged other groups to demand similar coverage. Once it was established that government should punish racial discrimination, the door was open to using government to punish anything similar. If it’s wrong for an employer, landlord, or organization to discriminate according to race, it must be just as wrong to discriminate according to gender.
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So the coercion expanded to prohibit discrimination against women and then religious believers, and then the elderly, and then people with children, and then the handicapped.
The New Aristocracy
Civil rights laws feed lucrative lawsuits. So every imaginable group wants to be covered by the laws to be eligible for generous settlements. There’s pressure to outlaw discrimination on the basis of sexual preference, weight, looks, drug use, illness, criminal record, citizenship, and many other categories. Everyone wants to become part of the aristocracy.
And it is an aristocracy these groups are trying to join.
Once they’re on the "A-List," they have special powers. They can sue anyone who refuses to hire them, to rent an apartment to them, or to sell his services to them and maybe force him to pay thousands or millions of dollars in punitive damages. No company can risk such a disaster by offending someone in the aristocracy since almost any mistake might be considered evidence of discrimination.
For example, in 1993 six U.S. Secret Service agents sued the Denny’s restaurant chain complaining they received poor service because they’re black. And how do they know their color was the reason for the poor service? Because a group of white people entered the restaurant at the same time they did, and the white people finished their meals before the blacks received their first course. To many people this was proof of discrimination.
Now, if you happen to be a white male, you’ve probably never felt such an insult. It’s true you may have endured dreadful service in a coffee shop perhaps many times. A waiter may have refused to give you the time of day, lost your order and forgotten you were even in the restaurant, spent all his time flirting with a waitress, or refused to take care of you until he had phoned his bookie.
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The family at the next table may have eaten an entire meal before anyone even asked for your order. And so you passed the time counting the designs on the wallpaper.
But it isn’t called discrimination if you aren’t part of a group that’s been certified as oppressed. So you have to blame it on a bad-tempered waiter, an overcrowded restaurant, or poor management. Since you aren’t part of the aristocracy, there’s no chance you were insulted because of your race (or your religion, handicap, or any other recognized status). You were insulted just because you’re you. And your only recourse is to find a coffee shop that will treat you better.
The Denny’s customers, however, could file a law suit and they did. To avoid a long, expensive trial and months of unfavorable news coverage, Denny’s settled out of court and paid them $54 million.1
Neither you nor I was in the Denny’s restaurant that night. And we aren’t mind readers. So we don’t know whether the waiter mistreated the Secret Service agents because of their race. But we do know that if it’s possible to get an enormous payoff for claiming discrimination, many people will try to get it whether or not they actually suffer discrimination.
So we shouldn’t be surprised that so many accusations are made. And with such rewards available for minor insults, it’s not surprising that more and more groups demand to be covered by the law.
Absurdity Becomes the Law
The civil rights laws are supposed to end discrimination and segregation, and to promote harmony.
But coercion never produces harmony. How harmonious are people who are being forced to act against their will? Most likely, those who are coerced will resent those who benefit from the coercion. This sets group against group; it doesn’t bring them together.
And if we accept coercion for one purpose, we’ll be asked to use it for others. Even if you can say "No" to the other uses, some people will say "Yes," and others will say "Yes, please, and make mine a double." The noble cause will be stretched further and further until it eventually becomes farce.
- A Chicago company was hauled before the Equal Employment Opportunity Commission to explain why it failed to promote a woman who claims she was discriminated against because of the microchip in her tooth that allows her to communicate with others.
- Then there’s the man who sued his employer who fired him for bringing a gun to work. He said he was covered by the Americans for Disabilities Act (an outgrowth of the Civil Rights Act of 1964) because he’s under psychiatric care. The case will be tried before a jury.
- A 220-pound woman has sued the Minnesota National Guard, claiming that its 155-pound limit discriminates against her eating disorder.2
- In 1993 a married couple was ejected from an airliner (before takeoff) because they had screamed a string of obscenities at other passengers. So they sued the airline, claiming it had discriminated against them as sufferers of a disease that makes them utter profanities.3
Has the law really been stretched so far?
No, it has been stretched even further.
In fact, it has been stretched all the way inside out. The civil rights laws originated to end segregation of the races in the South. But in 1992 a Florida court used these laws to award a white woman permanent disability benefits ruling that her employer should have provided a segregated workplace to accommodate her fear of blacks.4
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Although the decision seems absurd, something of the kind was inevitable. If coercion is used to protect the feelings of black people, eventually it will be used to protect the feelings of white people as well. Once government coerces on behalf of one group of "victims," it will eventually swing the club on behalf of almost every imaginable group. You can’t limit coercion to the uses you think are right.
So don’t think of any of these cases as an example of a government program gone wrong. Each is an example of a government program period.
You’re Not a Dictator
I’ve used the Civil Rights Act as an example of the way a well-intentioned government program grows and causes far more problems than it solves. But it is just one example.
All government programs expand to encompass the political demands of people who want to take advantage of its benefits. And almost all government programs eventually do the opposite of what their original backers had asked for.
Whatever social reform you may envision, the version the government implements will be something completely different. However lofty your purpose, it will be debased by compromises in the legislature, in the administration of the program by thousands of government employees, and in the settling of the inevitable disputes.
Not only that, the program is likely to grow far bigger and more complicated than what you wanted. And someday it will evolve into a force opposite to your intentions.
You aren’t a dictator. You can’t control the actions of politicians, bureaucrats, and judges.
Please remember that the next time you think some law will solve some great social problem.
- The Dennys suit was announced in the San Francisco Examiner, May 24, 1993. The settlement was reported in The New York Times, May 29, 1994, Section 4, page 4.
- The woman with the microchip in her tooth, the employee who brought a gun to work, and the National Guard case were all described in Reason magazine, May 1995, page 15.
- San Francisco Examiner, October 22, 1993.
- The case was brought against Fuqua Industries, Inc. in Florida, and was reported in The Wall Street Journal, December 23, 1992.
November 19, 2003