About Discrimination


Negative Right – A prevention of others from inhibiting your personal freedom.  Preventing others from taking away your life, freedom, or property.

Positive Right – A guarantee to a good or service provided by another.  This may include goods in the marketplace (service at restaurants) or guarantee to employment (currently in question), or access to loans (community reinvestment act).

Negative Rights are the foundation of the Constitution, the Declaration of Independence, and the Bill of Rights.  It may be argued that the 14th amendment’s “nor deny to any person within its jurisdiction the equal protection of the laws” is a positive right, but that clause as written is a negative right – it restrains the government from favoring certain groups and taking away the liberty or access to justice or property of others.  It actually says nothing about private actors (although poor interpretations of this clause abound, but seriously read it for yourself), and so the 14th amendment as written is a negative right (government cannot oppress).  Alternatively positive rights only come at the expense of the liberty of another.  You have the right to their labor, or the right to determine who they hire, etc.

The Civil Rights acts moved to end discrimination among private actors thereby granting positive rights.  A whole host of unintended consequences emerged.  One unintended consequence is the requirement of college degrees for positions that do not need a college degree.  The college degree allows a separation of potential employees by an “objective” standard rather than interviewer profiling, although that objective standard is highly racially dependent and so fulfills the role of profiling.  Another consequence was relocation of businesses into segregated neighborhoods to change the statistics of the population they had to represent which left black neighborhoods with inadequate employment opportunities.

What about all that discrimination in the south before 1964 though?  Let’s keep in mind that the pre-civil rights southern blacks were moving north in large numbers seeking better economic opportunities (this migration ended in 1964).  Whites and blacks then worked side by side in assembly lines and then went home with similar (although not equal) paychecks.  Is economic discrimination moral?  Certainly not, it disrespects the image of God in his creation.  However, if the 14th amendment was being carried out (providing equal prosecution and punishments for crimes perpetuated regardless of race, and equal protection of property in all neighborhoods of a city) the moral hazard of workplace discrimination would have ended as southern blacks sought labor in the north or built their own thriving areas (visit the childhood home of Martin Luther King Jr. or Bricktown in Oklahoma City for examples) and segregated business lost competitively to businesses willing to hire the best talent regardless of race.

The obligation of the government in 1960 was not to end workplace discrimination, but to end lynchings and to provide equivalent public services (especially police and fire fighters) regardless of race.  The economics would then be rectified in time as was the case for Irish immigrants and Italian immigrants who faced similar economic discrimination earlier in our nation’s history.  Or let’s pose that in a different way.  Irish Americans did not receive special protection status from any legislation while African Americans did.  Both groups were subject to severe economic discrimination.  Which group fared better?

On to ENDA.  The desired outcome of this law is that no employer think about gender or perceived gender when hiring or firing employees.  However, overt homosexuality (like sexual harassment) is disruptive to workplaces and employers will find a way around the law.  What will the methods be?  First will be to remain small enough that ENDA doesn’t apply.  Second will be to not advertise open positions and only hire based on recommendations of friends or employees. Third will be to outsource when a problem arises (move an entire department to a separate LLC, or allow a department manager to build his own company and subcontract all the work to that company which is itself exempt).

Let’s consider a non-intrusive homosexual (Pat).  Under the current paradigm a business owner may advertise a job, and doesn’t ask or care about orientation unless a problem arises.  Will Pat’s prospects improve when the owner only hires people based on recommendations of people he goes to church with, or decides not to expand?

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