FD: Libertarian evaluation of anti-discrimination laws

published at Freedom Democrats, 5/22/10

With the recent hub-bub over Rand Paul's dislike for laws against discrimination in employment, I thought it would be good to lay out the issues from a libertarian perspective. I think that Paul's description of the issues has been pretty weak, so I want to dig into those issues a little more.

Proponents of anti-discrimination laws appeal to two benefits of the laws:

 1. Creation of economic opportunities for excluded groups.
 2. Normalization of interactions between the dominant group and excluded groups.

My own libertarian attitudes prompt a few questions to evaluate the justice of anti-discrimination laws:

 1. Is the law burdensome?
 2. Is the law effective?
 3. Is the law necessary?

The answers to these questions are in large part a matter of fact. I have not gathered the relevant facts here (that job is much too big for a blog); instead, I am just going to discuss which facts would be relevant to the case.

* Is the law burdensome?* This is what I see as the crux of the libertarian critique. If a law imposes no costs on anyone, then it is irrelevant. Obviously, anti-discrimination laws will be seen as costly by those who wish to discriminate. Let's just assume that they are worthless people anyway, and ignore this cost. Do the laws place burdens on people who would not discriminate on their own? The people to ask are probably business owners, who are the ones who face discrimination lawsuits. How often are they sued, and how often are accusations dismissed as unfounded? What do businesses pay to retain legal counsel? How do they change their practices to avoid lawsuits. As an anecdote, a small-business owner once told me that she had been the target of discrimination lawsuits from a few disgruntled employees, and consequently limited her job advertisements to locations where "protected" workers would be unlikely to see them. I cannot vouch for the legitimacy of this anecdote, or how generalizable it is, but it does suggest a way that the law may place a burden on businesses. I can also speculate that businesses may try to shield themselves from lawsuits by using affirmative action in promotions or investing in "sensitivity" training. Rather than being a dead-weight loss of compliance, these may amount to transfers from the business to the excluded group.

* Is the law effective?* Libertarians often like to point to the unintended consequences of laws. Just because a law says "thou shalt" does not mean that everyone will. In fact, rather than following the spirit of the law, some members of the public will develop behaviors that comply with the letter of the law, or help to evade the law. Sometimes these behaviors can exacerbate the original problem, or prevent the development of alternative solutions to the problem. The anecdote above suggests that anti-discrimination laws could create discrimination in situations where it would not exist. Taking a cue from the opponents of affirmative action, there's a chance that anti-discrimination laws cause members of the dominant group to feel threatened by members of the excluded group, thereby interfering with the normalization of attitudes. I don't believe that there is any way to actually quantify this for long/standing anti-discrimination laws (though I'm sure many people have tried). Perhaps when the law is originally initiated, the expansion of economic opportunity could be measured by looking at the businesses that had openly discriminated prior to the law, and then see how much business they did with the excluded group after the law went into effect.

*Is the law necessary?* I think this is where Rand Paul really failed. The principles of libertarian law are not absolute. Human institutions, including the law, exist to serve human needs. To paraphrase one libertarian I know: notions of property rights are worthless to a starving person who sees a loaf of bread cooling on a windowsill. So, given the conditions of 1964, were anti-discrimination laws necessary (assuming that they were effective)? */Most definitely, yes/*. The economic argument for anti-discrimination laws is based on the fact that humans need access to physical materials (often called land and capital) in order to survive, but our property system does not provide such materials to anyone by right. Therefore, many people must ask others for permission to use the materials that they need to survive--they must sell their labor. On top of that, they are sometimes prevented from selling their labor because of anti-competition clauses in contracts.

This may be a tough situation in day-to-day life, but in 1964, the situation had been exacerbated to an intolerable degree. The dominant group (whites) had systematically and violently prevented the excluded group (blacks) from acquiring ownership of the materials that they needed to survive. In the absence of laws prohibiting discrimination in employment, blacks would have been dependent upon whites for their survival, and it was well known that many whites fully intended to discriminate against them. If I had faced what blacks had faced before the Civil Rights Act, I would consider the USA to be absolutely illegitimate, and a CRA without the private anti-discrimination considerations would not be enough to convince me that I would live within that system.

Rand Paul completely overlooks this situation when he compares the anti-discrimination laws to other regulations that may be placed on businesses (e.g. unable to prohibit guns) or to freedom of speech.

Some libertarians may be uncomfortable with the identity group mentalities that permeate our society, but our ideological opposition to such mentalities does not provide any excuse to ignore their role in real life, and the legacies of injustices done in their name.