Carpy
The unintended consequences of the '91 civil rights legislation
by Carpy
August 17, 2013 at 7:50 AM

The paper can be downloaded to read here

Here is an overview. 


Mickey Kaus, in linking to this post below (thanks, Mickey!), asks:

If a Hispanic who has performed as poorly and prominently as Patti Solis Doyle can’t be fired without her employer getting grief from Hispanic leaders, isn’t that a pretty big disincentive to hiring a Hispanic in the first place? Message: Stick to white males — if they screw up, you can sack them and nobody will whine.

Actually, that disincentive and that “message” have long been recognized as one of the costs of civil rights enforcement.

A classic example is the Civil Rights Act of 1991, which made it easier for disappointed job seekers to file “disparate impact” claims based on statistical evidence and increased the money-damage awards to plaintiffs.

In this excellent 2003 article, Stuart Taylor Jr. discusses a study by a Stanford economist and a Northwestern management professor, among other evidence, indicating that the 1991 law made “employers in traditionally white-male industries marginally less likely to hire minorities and women.”

How could the risk of high damage awards for discriminating against minorities and women make employers more hesitant to hire them? Because employers know that far more lawsuits are brought, and far greater damages are awarded, for claims of discrimination in firing than in hiring. So the risk of being sued for turning down a minority or female applicant is dwarfed by the risk of being sued later for firing the same applicant after giving him or her a try.

“The increases in potential damage awards,” write Oyer and Schaefer, “coupled with a decades-long trend toward firing-based, and away from hiring-based, employment-discrimination litigation, means the main impact of the act was to increase the costs to employers of dismissing protected workers…. Because [an employer] feels firing-based costs only if it decides to hire, the costs act as an implicit tax on such hiring. Firing-based protections may therefore lead employers to hire fewer protected workers, not more.”

Nor, Taylor continues, were these results unanticipated.

…. In a Stanford Law Review article half a year before Congress passed the legislation, Stanford Law School professor John J. Donohue III and co-author Peter Siegelman documented a major shift in the nature of job-discrimination lawsuits—as well as a spectacular increase in their number—since 1970: “While most cases formerly attacked discrimination in hiring, today the vast majority of all litigation suits challenge discrimination in discharge.” And although the 1964 Civil Rights Act was extremely valuable in breaking down the flagrant discrimination in hiring then practiced by many employers, the authors wrote, the “dramatic shift to firing cases has greatly increased the likelihood that Title VII will create a drag on the hiring of protected workers rather than the positive inducement it originally provided.”

Note that Taylor did not recommend (and, for what it’s worth, neither do I) that Congress eliminate damages for discriminatory firing, “[e]ven if the costs of such lawsuits to minorities and women, not to mention employers, have come to exceed their benefits….”

Racial discrimination is wrong, but that doesn’t mean we should refuse to see the costs of eliminating it. And it is always useful to be reminded that efforts to do good, especially when the power of the state is enlisted in the cause, often do both more and less than the good intended.

Replies

  • candlegal
    August 17, 2013 at 7:54 AM

    Everyone knows if you want to fire a minority, you better have your paperwork in order.

  • mamavalor
    August 17, 2013 at 7:54 AM

    So sad for the future of our nation.  What happened to getting the job based on merit?

  • Wicked.Jester
    August 17, 2013 at 8:01 AM

    Paraphrasing......if people wouldn't claim every fucking thing that happens to be "racially motivated" or a "racial attack" we'd come much closer to racial equality.....and get there much faster.

    Race baiting is now contributing to the problem as much as pure racism is.

    I believe this to be absolutely true.

  • mariekay
    August 17, 2013 at 8:02 AM

    Because getting the job based on merit requires hard work and effort. 

    Quoting mamavalor:

    So sad for the future of our nation.  What happened to getting the job based on merit?


  • Donna6503
    August 17, 2013 at 8:21 AM
    If the choice is between having civil right protection vs the chance I could get hired; for the opportunity, to get fired because of my minority status.

    Hmm, I think I'll choose the civil right protection. I don't think I wouldn't want to work at such a company in the first place.
  • Carpy
    by Carpy
    August 17, 2013 at 8:26 AM

    Could you explain that a bit better, because what I am seeing is not really making sense to the topic.

    Quoting Donna6503:

    If the choice is between having civil right protection vs the chance I could get hired; for the opportunity, to get fired because of my minority status.

    Hmm, I think I'll choose the civil right protection. I don't think I wouldn't want to work at such a company in the first place.


  • quickbooksworm
    August 17, 2013 at 8:30 AM
    I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).
  • candlegal
    August 17, 2013 at 8:30 AM

    ok, it isn't just me.   I thought I would get another cup of coffee and try again.

    Quoting Carpy:

    Could you explain that a bit better, because what I am seeing is not really making sense to the topic.

    Quoting Donna6503:

    If the choice is between having civil right protection vs the chance I could get hired; for the opportunity, to get fired because of my minority status.

    Hmm, I think I'll choose the civil right protection. I don't think I wouldn't want to work at such a company in the first place.



  • mamavalor
    August 17, 2013 at 8:31 AM

     And hard workd and effort are required to KEEP the job.  ;)


    Quoting mariekay:

    Because getting the job based on merit requires hard work and effort. 

    Quoting mamavalor:

    So sad for the future of our nation.  What happened to getting the job based on merit?



     

  • candlegal
    August 17, 2013 at 8:44 AM

    My sister is in charge of hiring and firing for her department at a hospital here in San Antonio.   Even as liberal as she is (and she is) she has told how hard it is to fire an african american and how you had better have all your ducks lined up before you even try.

    Quoting quickbooksworm:

    I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).