Drain the Racket

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Clarke_Review

When Title VII of the Civil Rights Act of 1964 was first passed, “help wanted: men” and “help wanted: women” ads were common in newspapers.  Private employers could hire and fire for discriminatory reasons.  Title VII made discriminatory ads and the hiring practices they represent illegal.  In their new book, Unequal, two law professors, Sandra F. Sperino of the University of Cincinnati, and Suja A. Thomas of the University of Illinois, are dismayed to learn how little has changed.  The country has failed women, who earn 82 percent of what men earn, as well as blacks and Hispanics.  Hispanic women earn 61 percent of what white men earn.  Black unemployment is double the white rate.  Women, blacks, and Hispanics are underrepresented in high-earning occupations.  What went wrong?  Even worse, why is it that employment-discrimination plaintiffs nationwide are losing almost all their cases?

The authors don’t even mention human biodiversity or sexual dimorphism.  (They do allude to “hours worked and career choice” as possible contributors to these statistics, but add that they do not explain the wage gap.)  Why, for example, don’t women command million-dollar contracts in the NFL?  No one is curious.

The authors blame federal judges for undermining the law.  After all, these judges are, according to the authors, 75-percent white and male and socially sheltered.  Furthermore, they are lazy and ambitious, looking to cut their workload and get appointed to a better slot.  These judges refuse to run the nation’s human-resources departments.  (But considering that they already run schools, prisons, and the Department of Homeland Security, where would they find the time?)  For reasons that will become obvious if they aren’t already, Unequal is astonishingly manipulative and ill-reasoned.  Admitting at the book’s outset that their examples of employment discrimination are fictional, the authors almost acknowledge that their abundant footnotes do not support their assertions.  A review of the facts in the cases cited usually reveals little to no relationship between the authors’ assertions and the facts.

The authors do not define “unequal,” and the subtitle, “How America’s Courts Undermine Discrimination Law,” seems a non sequitur.  The authors do not claim that judges apply the law differently, depending on the characteristics of the plaintiff.  Odder still, the authors focus on employment-termination and harassment cases, which would seem to be far less responsible for the demography of the workforce than hiring decisions, which the authors ignore.

Furthermore, the authors seem unaware that employers exist to offer valuable goods and services to the public.  Instead, the book’s underlying assumption is that the sole purpose of employers is to employ people.  While conceding that their recommendations to prolong the process of adjudicating employment claims would balloon the costs, the authors insist that the “[c]osts must be balanced with other values.”  Those other values apparently include worse products, poorer customer service, and a more unsafe workplace.

A quick summary of the current situation reveals what federal workplace discrimination laws do and do not address and why this short book is a red herring.  Unequal covers discrimination claims made in federal court under Title VII of 1964 (covering race, sex, color, religion, and national-origin discrimination), the Americans with Disabilities Act (1990), and the Age Discrimination in Employment Act (1967), but does not cite the statutes at any length until page 42 (of 177).  Even more egregious, the authors never set the statutes out in full, perhaps because the  language of the statutes is their thesis’s worst enemy.

Critically, these statutes prohibit an “employer” from “discriminating” against an individual “because of” the individual’s race, advanced age, or disability.  An employer is not an individual.  That is to say, a tasteless joke made by a cubicle mate is not an act of an employer.  Rather, an employer is the entity that determines the terms, conditions, and privileges of a person’s employment.  Discrimination is an adverse employment action, such as firing or demotion.  Hearing that tasteless joke is not an adverse employment action and therefore is not employment discrimination.  Failing to get an achievement award is also not an adverse action.  Finally, discrimination must have been “because of” the individual’s race, age, or disability—that is to say, the motive for the adverse action, or at least a motive.  As for harassment, it is not mentioned in the statutes, but the Supreme Court has acknowledged that discrimination statutes prohibit offensive conduct that suggests unwelcome quid pro quo behavior on the employee’s part to continue in a job or harassing behavior that creates a hostile workplace environment.  The plaintiff, as in all cases, has the burden of proof.  Rather than examine all the facts of a case in light of the statute’s language, the authors extract sensationalistic rhetoric from the record and throw it around as if it were relevant.

As the authors are so fond of hypothetical instances, what follows might assist the analysis.

Frieda is a 65-year-old female of Turkish descent with mild attention-deficit disorder.  She has worked as a restaurant’s dishwasher for five years and reports to the kitchen manager.  The restaurant is festooned with notices telling employees that harassment will not be tolerated and how to complain about it.  Four years ago, when Frieda accidentally tossed 12-dozen fresh cinnamon rolls into the garbage, the enraged baker called her a “stupid, backward, Muslim jihadist female idiot.”  Over the past four years, the baker and Frieda have come to laugh about the incident.  He has sometimes repeated the epithets he used about her as a joke.  He sometimes uses blue language around the workplace and tells dirty jokes.  Not all the jokes have been funny, but Frieda has laughed and has returned the insults in kind.

At times, the baker has expressed displeasure with Frieda to her boss.  However, her boss has been reasonably satisfied with Frieda’s work, and Frieda has not looked for other positions.  Nor has she complained through channels about any harassment.  Two weeks ago, Frieda and the baker had an unpleasant encounter, however.  To calm down, Frieda took a smoking break on the back porch, a designated smoking area.  Before returning for her shift, Frieda carelessly threw her cigarette into the trash, which ignited.  The restaurant was damaged, and the kitchen manager fired her.

Using the baker’s four-year-old slurs as evidence, Frieda filed an employment-discrimination suit against the restaurant in federal court, alleging that her firing was motivated by her sex, national origin, age, and disability.  She also alleged harassment.  Upon the restaurant’s motion for summary judgment (asserting that the claim should be dismissed because no reasonable jury could find for the plaintiff even if all her assertions are uncontradicted), a federal court dismissed Frieda’s claims.  Giving complete deference to Frieda’s statement of facts, as it is required to do, the court held that no reasonable jury would find that the restaurant’s motivation in firing Frieda was her legally protected characteristics.  Regarding the harassment claim, the court held that Frieda’s facts did not support her assertions, as she had conceded that her supervisor did not harass her or know of any harassment.  And because Frieda did not avail herself of the restaurant’s procedural avenues of relief, the court held that there was no employer-countenanced harassment as a matter of law. 

Is there really an argument that Frieda was fired “because of” the baker’s hatred of Turks, women, the elderly, or the inattentive?  The authors want you to think so, which must be why they tell you, without context, about the insults that the fired employees have endured but not the damage the employees did that got them terminated.  Instances of malfeasance include allowing a body to drop to the floor from a gurney, engaging in a physical altercation in the workplace, and walking off the job.  Indeed, a reader of both the texts and the footnotes might use this book as evidence that the whole discrimination racket is a corrupt drain on the economy and should be scrapped.

Though the book predates James Damore’s famous Google memo and firing, the authors should at least take satisfaction in the knowledge that, when truth is on a collision course with society’s official policy agenda, companies—and more specifically, their insurance companies—will look for the cheapest way out.

It has been said that there is no such thing as a bad boy.  Sperino and Thomas seem to believe that there is no such thing as a bad employee, either, at least if the employee is covered under federal antidiscrimination statutes: Any employee whose status has federal protection and has experienced a slight should be given what will amount to immunity from the consequences of his employment.  The authors even recommend that employers abandon their defenses against employee claims.  If employers refuse, the authors call on activists to shame these employers on social media until the employers give up.  But anyway.

Q: What do you call a woman who works as hard as a man?

A: Lazy.

Just kidding.

 

[Unequal: How America’s Courts Undermine Discrimination Law, by Sandra F. Sperino and Suja A. Thomas (New York: Oxford University Press) 232 pp., $29.95]

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