Forbidden Grounds: The Case Against Employment Discrimination Laws by Richard A. Epstein (Cambridge: Harvard University Press 1992); 530 pages; $39.95.
In the 1960s, many conservatives opposed the civil-rights acts and forced-integration laws that were passed. Some of these conservatives may have been racists who wanted to preserve segregation. But most conservative intellectuals opposed these Congressional laws because they believed in freedom — the individual right of freedom of association. They argued that if forced segregation was wrong, then so was forced integration. I remember many of my conservative friends arguing with great emotion against the liberals in the 1960s that “you cannot legislate morality.”
They neither defended the slavery of the last century nor the racial bigotry of this century. But they did believe that racial attitudes among people could not be removed with the magic wand of a law passed by Congress. And they argued that better conduct by mom tolerant men would only emerge over time through the power of reason and the persuasiveness of example.
Conservatives gave up this fight a long time ago. For many years now, they have accepted the liberal argument that the state should prevent racial discrimination in the marketplace. Conservatives now only oppose affirmative action — the idea of racial quotas or “targets” in the marketplace — which they fear breeds forms of “reverse discrimination.”
Richard A. Epstein’s recent book, Forbidden Grounds: The Case Against Employment Discrimination Laws, returns to the original terms of the debate and presents a hard-hitting case for the principle of freedom of association.
Dr. Epstein, professor of law at the University of Chicago and author of the book Takings, explains that it is the competitive market economy that offers the largest arena for assuring opportunity and improvement for all. In the marketplace, no employer, in the long run, can profit from racial discrimination. If he allows his racial biases to dominate his hiring decisions, he will, over time, lose out to those employers who are more concerned with profit-maximization regardless of the skin pigment of their employees. Indeed, Professor Epstein argues that by imposing antidiscrimination laws on employers — laws that raise costs and reduce hiring flexibility — there is a tendency towards a narrowing of employment opportunities for all, including the ethnic minorities these laws are meant to assist.
Professor Epstein first presents the theoretical framework for understanding the effects of leaving the marketplace free from governmental regulation. He then analyzes the actual meaning of antidiscrimination laws, the problems of enforcing them, and the effects they have tended to create.
According to Professor Epstein, the heart of the problem revolves around the following issues: What is discrimination? Who decides if discrimination has occurred? What is to be done about it, and what means are to be used?
Hiring practices are never clear-cut. There is a wide spectrum of circumstances that generate the decision to hire certain workers, only one aspect of which may be the issue of the skin color or sex of the potential employee. And to determine and specify these factors, and decide whether or not they are “just,” is often impossible to sort out. This is made even more difficult when there may be sound reasons for hiring people of a particular sex or race.
The premise of the antidiscrimination laws is that people should be hired on the basis of “merit.” But once it is the state that determines the meaning and application of a merit standard in hiring, the political authorities have to construct some external or “objective” yardstick by which to compare the behavior of employers. Once this has been accepted, Professor Epstein explains, it becomes a slippery slope leading to standards based on percentages of blacks or women in the various workplaces in comparison to the percentage of blacks and women in the communities in which blacks, women and other minorities are looking for jobs. And not far behind this conception of employment fairness comes the idea of quotas in hiring, under the name of .. affirmative action,” to redress supposed past employment grievances suffered by these various groups.
Professor Epstein’s conclusion is that the only solution is to repeal practically all the antidiscrimination laws and return to a principle of freedom of association. The present laws, he says, are based on the idea that “forced association is better than a strong norm of freedom of association…. The modern civil rights law has led to a dangerous form of government coercion that in the end threatens to do more than strangle the operation of labor and employment markets. The modern civil rights laws are a new form of imperialism that threatens the political liberty and intellectual freedom of us all.” Professor Epstein concludes, “My study of the employment discrimination laws has persuaded me of the bedrock social importance of the principles of individual autonomy and freedom of association.”