Dumbest arguments against anti-discrimination laws, part 2

Political cartoon about a distinction without a difference.
I’ve always loved this D.C. Simpson cartoon.
Continuing from yesterday, there are some really ridiculous arguments people assert against anti-discrimination laws. The ones that annoy me the most are those put forward by people who claim that they don’t believe in discrimination, and support fair and equal treatment for everyone, it’s just that…

Laws like this encourage frivolous lawsuits, and that just wastes time and money.

This argument would be simply sad and wrong if it weren’t always being made by Republicans who have, for decades, gummed up the works on the appointment of federal judges. This situation is so bad, that during his final years, Supreme Court Chief Justice Reinquest (originally appointed as an Associate Supreme Court Justice by Nixon, then later elevated to Chief justice by Ronald Reagan, so hardly a flaming liberal) began giving speeches pleading with lawmakers to stop playing politics with federal appointments and allow the courts to deal with the incredible backlog of lawsuits and criminal cases by confirming the hundreds judges nominated to fill empty judgships.

So, before they have a right to gripe about clogged courts, these guys need to staff them up.

The logical flaw in the argument is the inference that somehow expanding anti-discrimination laws to include sexual orientation will induce millions of people to suddenly start feeling wronged over imagined slights. Sorry, the sorts of people who file friviolous lawsuits don’t wait for you to pass a new law. They find ridiculous grounds to sue all on their own. A passage of anti-discrimination laws in the states that have them hasn’t opened up a floodgate of frivolous lawsuits in any of the states.

Let’s be honest, here. The person who says this isn’t really concerned about frivolous lawsuits, they’re concerned with legitimate discrimination suits. They want people to be free to discriminate about gay, lesbian, and transgender people.

Complying with another anti-discrimination law will cost small businesses a lot of money, and will hurt job growth.

This one always cracks me up. Think about it for a moment. How do you comply with a law that says you can’t fire someone just because of their sexual orientation? You comply by not firing someone because of their sexual orientation. Not firing a competent employee doesn’t cost a business anything.

You know what does waste a lot of time and money for a business? Firing and replacing productive employees.

The goal of the anti-discrimination law is to encourage companies to make decisions about who to hire, who to fire, and who to promote based on the employee’s work performance and job skills. Doing that doesn’t cost you money. Doing that generates money.

They aren’t needed because this is covered by existing laws.

Simply one-hundred percent false. And because this argument is most often put forward by people who are putting forward one or more of the other arguments, it isn’t just false, it’s nonsensical. If the law already prohibits this kind of discrimination, and if laws that prohibit discrimination cause all of the other bad things they claim they do, then we would already be suffering all of those bad things, so what difference does it make to pass this one?

A lot of people do sincerely believe that it is already illegal to discriminate. We’ve been down this road a few times during my lifetime alone, and I’ve heard all of the same arguments that are currently being made against prohibiting discrimination based on sexual orientation and gender identity trotted out for laws against racial discrimination, and for laws against sex/gender discrimination, and laws discrimination based on marital status, and laws against age discrimination.

And in the course of the debates on each of those, there have been people saying, “It’s wrong to make hiring, firing, and promotion decisions based on anything other than job performance and skill.” That’s goal has been repeated enough, that I think a lot of people now believe that there is somehow a generic anti-discrimination law that says exactly that.

There isn’t. I don’t want to go into all the reasons here. The upshot is that it’s been easier to pass (and is easier to enforce) laws that ban specific categories from discrimination. Sexual orientation and gender identity are not currently in that list, and as long as they are not, the current system does not, in any way, “cover it.”

Illinois map with rainbow colors.
Welcome to equality, Illinois!
They aren’t needed because the culture has already moved past this. Look at how accepting everyone is on gay marriage!

This is like arguing in the 1960s that laws against racial discrimination weren’t needed because everyone accepted long ago the banning of slavery. Or arguing that laws against sexual discrimination weren’t needed because everyone accepted long ago giving women the right to vote.

I am well aware of the amazing shift in public opinion about gay rights that has occurred over the last several years. But having a bit more than half the population in many states think that you deserve a single legal right still leaves a rather large chunk of the population that doesn’t. Compare that percentage of support in the low 50s for same sex marriage to support at nearly 80% for interracial marriage, and then look at how often racial discrimination still happens.

A very interesting variant of this has recently popped up, looking at the fact that in states that have banned discrimination based on sexual orientation that there have been hardly any lawsuits filed, compared to the number filed for gender discrimination. “That proves the laws aren’t really needed.”

First, “hardly any” is not the same as “none at all.” Second, the vast majority of sexual discrimination suits are filed by women. Women make up approximately half the population. Gay, lesbian, and transgender people make up a lot less than half the population. It makes sense that there will be more instances of sexual discrimination than sexual orientation discrimination because there are more of them and fewer of us.

There are at least two other issues that factor in. One is that a not-insignificant fraction of incidents of sexual orientation discrimination also include elements of gender discrimination. An employee who is known or believed to be a lesbian is often subjected to a hostile work environment that consists of many instances of inappropriate sexual innuendo and commentary. It’s a lot easier to prove the sexual harassment in those cases than the sexual orientation motivation, so the people trying to make the case tend to file them as sexual harassment suits, rather than discrimination suits.

The other one is the nature of the closet. This may change someday, but right now that vast majority of working gay and lesbian people spent at least some of their life closeted. We all learned at an early age the habits of not drawing attention to ourselves, of trying to blend in, especially if things have gone badly, and so forth. There is a small amount of empirical data to back up the notion that gay or lesbian people who have been treated unfairly in the workplace are far less likely to be willing to file a complaint than a straight person who thinks they have been treated unfairly. We’ve been raised to believe that complaining about being mistreated will lead to worse mistreatment, so it is easy for us to rationalize a decision to just accept a new job at a new place and never think about that old place again.

Just as the fact that some victims are reluctant to press charges is no reason to decriminalize rape, the fact that some gays and lesbians are reluctant to pursue discrimination cases doesn’t justify not banning the discrimination.

Similarly, violent crime rates have been going down, consistently going down, for decades. Does that mean we should start repealing laws against assault, battery, rape, and murder? No. It absolutely doesn’t.

The anti-discrimination laws have effects other than filed lawsuits or complaints with regulatory commissions. The fear of lawsuits makes companies that don’t already have anti-discrimination policies enact them. Those policies increase the social expectation that one doesn’t make certain statements or take certain actions in the work place.

Their enforcement also pops up in ways that don’t get caught in those statistics. Lots of wrongful terminations are handled at the unemployment insurance level without rising to the point of the person filing a lawsuit. My one personal experience with this was years ago when my now ex-wife was fired for a reason not allowed under state discrimination laws. After the unemployment hearings determined that she was wrongfully terminated (and thus was entitled to full benefits, and her former employer would be assessed higher unemployment fees for a period of time), we were asked if we wanted to pursue it further, and she chose not to.

In other words, the law has benefits all up and down the spectrum, not just in the most egregious cases that are worth pursuing in court.

Finally, as I said yesterday, laws are how we say, as a society, here is a line that you cannot cross and remain within the bounds of acceptable behavior. It’s a way to recognize when behavior rises to the level of causes harm to other people, and that causing that harm to other people comes with consequences.

All of these arguments are put forward by people who also claim that they don’t believe in discrimination. But their opposition proves the exact opposite.

(To be continued…)

3 thoughts on “Dumbest arguments against anti-discrimination laws, part 2

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