The Civil Rights Act of 1964 tried to do two things, one of which has been completely successful and the other of which has been much less so.
The successful part of the Act targeted racial discrimination in public accommodations — hotels, restaurants, service stations, and the like. Although expressed in terms of outlawing "discrimination," this part of the legislation could have simply required these establishments to serve all members of the public: first come, first served.
This part of the Act has been so successful that we rarely hear complaints that accommodations have discriminated. Recent complaints about Airbnb have been about homeowners offering lodging through Airbnb rather than about the corporation's own actions.
Most recent complaints have been against employers and universities,, subjects addressed elsewhere in the Civil Rights Act.
Legislation directed at employers and universities cannot be translated into a requirement that applicants be accepted first come, first served. Such a restatement could work with public accommodations which offer standardized goods or services — rooms, menu items, types of gasoline.
But employers don't seek standardized workers.
They need individuals with particular skills, abilities, background, temperaments, and experience. Airlines needing pilots shouldn't just hire the first applicants. Likewise with hospitals seeking brain surgeons.
Hiring inherently requires selectivity.
Although universities could, and some do, admit all applicants first come, first served, to require them all to do this would destroy the selective institutions which are vital parts of American higher education.
Discrimination is a reason for acting rather than an action. Therefore the very same action — such as not hiring a particular person — can be either legal (if its motivation is considered good) or illegal (if its motivation is deemed bad). It will be legal if the employer honestly thought the applicant was unqualified, or not as well qualified as some other applicant.
It will be illegal if the employer didn't want to hire the person because of his or her race.
Proving illegality therefore requires not merely finding that an employer took a particular action, but also why it took that action..
In sharp contrast, to prove that a public accommodation violated the Civil Rights Act didn't require evidence of discriminatory motives. Motives were irrelevant and all that is needed to be proved was that the establishment had an available room, table, or gasoline, and refused to sell it to the next member of the public to step forward. Ease of administration is probably why this part of the Civil Rights Act has been so successful.
Actions, the only evidence needed to convict public accommodations proprietors, can be observed. But the motivation for an action cannot be observed and must be determined inferentially. People can avoid breaking genuine laws — general rules of action — by not stepping across the lines drawn by law.
But when the very same action can be either legal or illegal, there is no way an employer can avoid the danger of punishment. Legislation drawing such unclear lines therefore seems to deny employers fair "notice" of their legal duties.
Since notice is an essential part of due process of law (under the Fifth and Fourteenth Amendments) such legislation normally might be considered unconstitutional. The constitutionally irrelevant fact that the Civil Rights Act of 1964 had a highly legitimate goal has understandably been an obstacle to any such ruling by the courts.
Since it is so hard to prove motivation beyond any reasonable doubt, government has resorted to inferences based on statistical imbalances among the races to prove employers and universities have discriminated. But there is no way to prove that the percentage of employees or students of a particular race ought to resemble the distribution of races in the general population. This is merely assumed.
Since determining motivation is largely subjective, antidiscrimination rules greatly expand the power of public officials to treat employers arbitrarily. Ironically, legislation intended to protect people from being treated arbitrarily by private parties increases the power of public officials to treat people arbitrarily.
And arbitrary treatment by officials can result in serious deprivations of liberty or property. Arbitrary private treatment, on the other hand, consists of refusing to enter into a voluntary association with someone else. Such refusals do not set the other party back and they leave that person free to find more reasonable employers or universities to associate with.
We must face the fact that laws can solve some problems (discrimination in public accommodations) but are not effective at solving other problems (such as discrimination in employment).
We need to move beyond law and find better ways to combat employment discrimination.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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