Would you have voted for the Civil Rights Act of 1964?

[bedstuy]

It's fun seeing pasty white teenagers saying how evil it is to require businesses to not turn away black customers/prospective employees due to race.

You do realize you are literally advocating thought crimes by advocating laws to prohibit employment discrimination. How can you expect an government official charged with enforcing equal opportunity for employment to determine whether an employer was being discriminatory in his decision? You do not have a mind-control device, so presumably you would have to use equality of outcome as the benchmark since equality of opportunity is impossible to enforce. However, by mandating equality of outcome, you are effectively forcing the employer to racially discriminate in his hiring decisions in order to achieve the desired racial quota to avoid legal harassment.

The standard for employment discrimination under Title VII is not as harsh towards employers as you suggest.  Plaintiffs under Title VII do need to prove a discriminatory motive to win.  It is true that proving motive is difficult and the doctrine is somewhat problematic.  But, the burden is on the employee.  Ultimately, it is very difficult for a plaintiff to win a Title VII employment case in Court.  

Obviously, there's the potential for abuse of the civil rights act.  I wish we didn't need it.  But, you have to consider how the structural private racism that existed in 1964 utterly corrupted our society and destroyed the personal liberty of black people.  For that reason, personal liberty exercised to deny jobs, services and basic human dignity to black folks was not a private matter. Private racism ruined the lives of generations of people.  You can't truly be a democratic country or a free country without addressing that.

[bedstuy]

The standard for employment discrimination under Title VII is not as harsh towards employers as you suggest.  Plaintiffs under Title VII do need to prove a discriminatory motive to win.  It is true that proving motive is difficult and the doctrine is somewhat problematic.  But, the burden is on the employee.  Ultimately, it is very difficult for a plaintiff to win a Title VII employment case in Court.  

If that is the case, then what is the point of having it? To force employers to be more subtle about racial motivations in their hiring practices?

EDIT: Additionally, you seem to act as though court cases are inexpensive. Even if it really is rare for a plaintiff to win a Title VII case in court, the employer still has to waste money proving his innocence rather than using it to invest in his business or deliver profits. Thus, the employer is still encouraged to bend over backwards for minority applicants lest they be faced with an expensive lawsuit.

Why are you so sure that Title VII forced all businesses to bend over backwards for the benefit of their minority employees?  It's not like the likelihood of a title VII case is the only consideration for a business.  From a purely economic perspective, there are a ton of incentives towards hiring the most qualified person.  Those incentives still exist. Meanwhile, how many people file these lawsuits?  It is enough to completely override the business judgment in favor of the consideration of one type of lawsuit?

And yes, legal compliance can be costly.  It's costly for the environmental laws and accounting laws too.  Providing a legal remedy for victims of discrimination is a worthy goal and we should we willing to spend money on it.

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The cause of black people's plight was not private racism, it was state-sanctioned racism. State facilities segregated blacks, the state forbade private businesses from integrating, state schools instilled racist ideology into young minds. Title VII takes the means used by Jim Crow and merely changes the ends to forced integration instead of forced segregation.

A chance of being sued by your employee for reinstatement or monetary damages is like Jim Crow?  I'll take the chance of litigation against my business over being murdered and hung from a tree by the Klan any day.  Which reminds me, the KKK wasn't a federal agency last time I checked and it factored into the plight of black people.  Do you have any idea what the Jim Crow South was like?

You really can't disentangle the government from the people or private from public racism; especially in a world where our current state of affairs is the product of hundreds of years of government enforced discrimination.  Racism itself is a moral wrong.  Acquiescence to private racism is accepting a moral wrong.

[bedstuy]

One could argue that such a loss would be worth it if it means that blacks will avoid employment discrimination. However, a free market penalizes employment discrimination without encouraging marginal employment discrimination in favor of minorities. If government laws regarding discrimination are not taken into account, if a black applicant is worth $10 more to a business than a less qualified white applicant, then the employer must undergo an opportunity cost of $10 for letting racism factor into his hiring decision. Switch the races of the two applicants and the assessment remains true, something that cannot be said about Title VII. At no point would the market encourage racial discrimination to be a factor in hiring decisions, which makes Title VII both unnecessary and counterproductive toward reducing racial discrimination in hiring decisions.

If people were purely rational economic actors, there would never have been racism in the first place.  The real question is what is the baseline of racial discrimination forms the backdrop of our analysis. You're comparing the 64 Civil rights act to a free, rational employment market, not the world as it existed in 1964.  In 1964 America was profoundly racist towards blacks.   

To suggest that one is a "victim" of discrimination is to imply that one has a right to a job. If I do not have a right to work at Starbucks, then how can I claim any damages from not being allowed to work at Starbucks?

Discrimination is unfair treatment on account of your race, gender, sexual orientation, etc.  You only have a right to a particular job if you would have had that job absent discrimination. 

I'm not really sure how to respond since I neither advocated private racism not encouraged acquiescence to it. An absence of government coercion is both necessary and sufficient to enable those who let private racism guide them in their decisions be monetarily sanctioned for their actions. Coercion can only aggravate this by placing incentives for discrimination one way or the other.

Again, you're imagining a fairy tale world where the entire society hadn't been shaped by racist attitudes for hundreds of years.  If there was no accreted racism in our society in 1964, you're completely correct. But, the people in our country were racist.  In a country full of racists, your counter-factual of a racially neutral fair government is not possible.  We had to change our society and take difficult steps personally, not just end the most egregious Jim Crow laws.

[bedstuy]

To pick at Bedstuy's point, obviously not everyone is a perfectly rational economic actor. But let's look at it from the other side. Southern racists were obviously willing to take black money. They may not let them sit at the lunch counter, but if their racism was that dominant, they wouldn't be letting blacks in at all. All it takes is a few places serving blacks and all of a sudden you lose money by sticking to your racist principles.

This has been shown on numerous occasions, most notably with Jackie Robinson in Major League Baseball. I also believe blacks were hired in some industries in apartheid South Africa solely because the executives wanted to save on pay. Once there is a critical mass of people willing to put aside their racism for cash, the problems tend to die off.

Unless the government is enforcing them of course.

That actually strengthens my point.  From the perspective some certain people, the subjugation of one race can be beneficial even it's not optimal from the aggregate perspective.  White workers feared black competition in skilled labor/trades and excluded blacks from unions and job opportunities.  The Southern agricultural sector exploited blacks first under slavery and then under quasi-slavery after reconstruction.

More broadly, being somewhat tolerated in spite of your race because people can make money off of you is completely insufficient.  All races of people deserve to be treated the same.  That situation you describe is just selectively decent treatment at the convenience of the majority.

[bedstuy]

Discrimination is unfair treatment on account of your race, gender, sexual orientation, etc.  You only have a right to a particular job if you would have had that job absent discrimination.

So, assuming that I am a competent waiter, I have a right to work at Hooters?

The problem with this worldview is that employment is not a tangible entity, it is a contractual agreement between employer and employee. You state that I only have a right to a contractual agreement between myself and my employer if I would have had that contractual agreement absent discrimination. However, since this contractual agreement is voluntary, this means I only have such a right if my employer would have agreed to the contract absent discrimination, something that only my employer can attest to. Thus, if I have a right to a job, such a right is unenforceable since such a right only exists if my employer acknowledges it exists.

Employment law wasn't brought down from Mount Sinai by Moses.  We're allowed to change the law if we think it makes sense.  The standard for what constitutes illegal employment discrimination was decided by Congress and the Courts.  Essentially, we add into every contract that employers with a certain number of employees need to follow Title VII and the relevant law.  That's the cost of doing business and it probably gets incorporated into prices.  What's so bad about that?

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Again, you're imagining a fairy tale world where the entire society hadn't been shaped by racist attitudes for hundreds of years.  If there was no accreted racism in our society in 1964, you're completely correct. But, the people in our country were racist.  In a country full of racists, your counter-factual of a racially neutral fair government is not possible.  We had to change our society and take difficult steps personally, not just end the most egregious Jim Crow laws.
[/quote]

If a racially neutral fair government was not possible in American society in 1964, then how on earth did the CRA pass?
[/quote]

The Civil Right Act was extremely difficult to pass and met with massive resistance from the South. It was a step in the right direction by part of the country, sure.  But, the same year Mississippi basically allowed a terrorist campaign against black people who wanted to exercise their civil rights.  We had a long way to go to become a non-racist society back then and we're still not there today.  What makes you think racism was a minor social issue in America?

[bedstuy]

I posited how is it feasibly possible to determine whether an employer has racially discriminated in his hiring practices and how is it feasibly possible for one to have a "right" to a job. You replied with a legal justification for barring racially discriminatory hiring pratices.  It's the equivalent of replying to a question of how can a man get an abortion by pointing to Roe vs. Wade.

I don't understand your reasoning on either point.  Courts make factual findings on motive all the time.  It happens in thousands of court cases every year.  This is just one type of motive. As to Title VII, it does not imply any general right to a job and doesn't require one.

Could you point out where I said racism was a minor social issue in America? You said that without changing our society, it is pointless to ponder about a racially-neutral government. However, you made this argument in the context of advocating the use of government as a engine for societal change. This seems to contradict your previous assertion that societal attitudes determine the nature of government rather than the reverse.

Government can enforce and abide by the 14th Amendment.  That's really helpful in ending discrimination.  We would agree on that. But, the 14th Amendment only applies to state action and requires an extremely high level of proof of intention to discriminate.

So, the existing laws of 1964 would leave all private action untouched and would bar only overt, obvious discrimination by the government.  That might be enough in world that had some degree of racial equality and a racial comity.  But, in a world where the norms of our society were racist towards blacks and consistently favored whites, I don't see how government neutrality is enough.  You asserted that economic incentives would naturally lead to the disappearance of racism. 

Maybe that's true in the extremely long run.  But, in the short run, you have to justify that fact that you value the economic rights of businesses and the cost of litigation over providing a remedy to the black people suffering from private racial discrimination.  Perhaps you think it's pure conjecture that white men have enjoyed enormous advantages over everyone else.  But, given the history of the country I think that's an ahistorical and naive view. 

[bedstuy]

So you think that a court knows more about the details about running a business than the employer does? Whether one applicant is more qualified for a particular position than another is not an objective fact; it is a subjective decision made by the employer. Given this, only the employer can truly know whether he has racially discriminated in his hiring practices. The only conceivable way the Court can circumvent this problem is by using quotas as a determinant of racial discrimination, but then we are left with state-imposed equality of outcome rather than equality of opportunity.

An employment decision is partially subjective and partially objective.  Large corporations often even have mandatory rules on promotion.  There's also tons of circumstantial evidence in many cases that sheds light on the decision.  Of course the defendant in one of these cases knows what was going on in their head.  But, of course they are going to claim they didn't discriminate no matter what.

Title VII does not adopt a quota system.  They use a burden-shifting framework created by the Supreme Court in the 1970s. 

Then how can you claim the right to be free of employment discrimination as a civil right if such a right doesn't exist?

It isn't grounded in a property right in your job.  It's grounded in an interest in equal treatment based on race.  The part where you get the job or money damages is just the remedy.  I feel like your concern is more about substantive due process rights of employers.

If that remedy involves forced association between two nonconsenting individuals, then yes. In the absence of discriminatory laws, blacks would have already had a remedy for private racial discrimination: it's called the marketplace. I don't see why blacks would not have reacted as strongly to a discriminatory private business as they did to Montgomery public transit.

Racial discrimination is not always open and obvious.  Racism more broadly can be completely covert and even unconscious.  To address the purely social aspects of racism, you need to change the moral norms of your society.  Part of the job of the law is to create and protect moral norms.

I never denied that the justice system was favored toward white men during the first centuries of America. However, you don't fix that by suddenly making it biased in the other direction (albeit not as flagrantly.) That problem is alleviated by eliminating state discrimination.

I would agree affirmative action and similar programs are a major concern constitutionally.  But, white people still enjoy an advantaged position in this country.  There is no general anti-white bias in America. 

[bedstuy]

So you believe that using circumstantial evidence can allow us to read minds, which is what it would require to know if someone was discriminating based on race?

The court system makes factual findings on mental states all the time.  And you don't need to know to a certainty that there was a discriminatory purpose.  It's not as difficult as you think.

As I mentioned earlier, just because it does not create a quota system de jure does not mean that it does not incentivize quotas de facto, ceteris paribus.

To the extent it does that it's wrong.  But, at some level we have to triage the harms.  In 1964, the harm to minorities was so widespread that it outweighed the collateral problems you raise.

But how can there be a remedy for someone who has no damages?

They have consequential damages as a result of being discriminated against. 

Again, this is a chicken-or-the-egg question. You assume that moral norms arise from law, I question whether it isn't the other way around.

It's a two-way causal relation.  My point is that when you know the people that are disproportionately the victims of discrimination and you know that many forms of discrimination are hard to detect, you should think about putting a thumb on the scale in order to get some deterrence and social change in favor of the minority that has been screwed over for hundreds of years.

[bedstuy]

Just because the court system currently does it does not justify the practice. I'm not a believer in thought crimes.

It's not a thought crime.  It's an action, like firing someone for example, with a certain mental state attached.  Pretty much all crimes require a certain mental state.  If courts couldn't make findings on mental states you couldn't have the legal system.

They have consequential damages as a result of being discriminated against.

Such as? 

Basically, the court awards damages that put the person in the position they would have been in absent discrimination.

Again, this is a chicken-or-the-egg question. You assume that moral norms arise from law, I question whether it isn't the other way around.

It's a two-way causal relation.  My point is that when you know the people that are disproportionately the victims of discrimination and you know that many forms of discrimination are hard to detect, you should think about putting a thumb on the scale in order to get some deterrence and social change in favor of the minority that has been screwed over for hundreds of years.

If it's so hard to detect that the perpetrator is not being penalized for it in the competitive marketplace, what makes you think a monopolistic judge is capable of performing the task?

I don't really accept your premise that the marketplace prevents racial discrimination.  I do think that most potential cases are never bought.  The vast majority that get filed are settled or dismissed.  The few that go to trial have the best evidentiary record.  For that small percentage, I trust the court system to do a decent job.  But, the bigger issue is that the act as a whole creates  a societal norm that it's wrong to treat someone differently because of their race, gender or ethnicity.

I think society needs to have that norm.  That's a value judgement on my part.  Obviously, it doesn't justify any policy.  I'm sure Title VII can be improved upon and it is less urgent today because we've made tremendous progress (in large part thanks to the Civil Rights Act).

[bedstuy]

Just because the court system currently does it does not justify the practice. I'm not a believer in thought crimes.

It's not a thought crime.  It's an action, like firing someone for example, with a certain mental state attached.  Pretty much all crimes require a certain mental state.  If courts couldn't make findings on mental states you couldn't have the legal system.

From the Oxford English Dictionary:
Thoughtcrime
noun
an instance of unorthodox or controversial thinking, considered as a criminal offence or as socially unacceptable.

If someone decides not to hire a black because they are black, any charges against them are clearly thought crimes.

There's a difference between having a thought and acting because of a thought.  If that hypothetical racist doesn't want to violate the law, they can just choose not to work in an HR department.  That way they can think racist thoughts to their hearts' content.

If you don't believe mental states are at all significant to the law, do you believe in differentiating first degree murder from accidentally killing someone in a car wreck?

[bedstuy]

Just because the court system currently does it does not justify the practice. I'm not a believer in thought crimes.

It's not a thought crime.  It's an action, like firing someone for example, with a certain mental state attached.  Pretty much all crimes require a certain mental state.  If courts couldn't make findings on mental states you couldn't have the legal system.

From the Oxford English Dictionary:
Thoughtcrime
noun
an instance of unorthodox or controversial thinking, considered as a criminal offence or as socially unacceptable.

If someone decides not to hire a black because they are black, any charges against them are clearly thought crimes.

There's a difference between having a thought and acting because of a thought.  If that hypothetical racist doesn't want to violate the law, they can just choose not to work in an HR department.  That way they can think racist thoughts to their hearts' content.

If you don't believe mental states are at all significant to the law, do you believe in differentiating first degree murder from accidentally killing someone in a car wreck?

It's a thought crime because the action would not have been a crime in the absence of the thought.

So, insider trading is a thought crime?  Mail fraud is a thought crime? Section 1001?  Fraud?   Last time I checked, selling stocks, sending mail and making statements to people is legal.  Tons of laws also have a scienter requirement where there's no crime unless you have specific intent of some kind.

[bedstuy]

Just because Orwell has permeated other realms of the law does not justify the practice. Any law ought to have a clear victim, in which case whether or not the perpetrator was aware of his actions is immaterial, a mitigating factor at best. The person who bought rat poison sold as milk would have had his property rights violated regardless of whether or not the vendor actually thought it was milk. However, even if we accept the dubious premise that an applicant who has been racially discriminated against has had his rights violated (even though he has no right to a employment contract to begin with), nobody would allege that an applicant's rights have been violated if the employer hired a different individual. It only becomes a crime according to this logic if the employer used race as a factor in his hiring decision, something that only the employer can know until the day that mind-reading technology is perfected.

OK, good luck fundamentally changing the American legal system with your circular libertarian reasoning.

[bedstuy]

Just because Orwell has permeated other realms of the law does not justify the practice. Any law ought to have a clear victim, in which case whether or not the perpetrator was aware of his actions is immaterial, a mitigating factor at best. The person who bought rat poison sold as milk would have had his property rights violated regardless of whether or not the vendor actually thought it was milk. However, even if we accept the dubious premise that an applicant who has been racially discriminated against has had his rights violated (even though he has no right to a employment contract to begin with), nobody would allege that an applicant's rights have been violated if the employer hired a different individual. It only becomes a crime according to this logic if the employer used race as a factor in his hiring decision, something that only the employer can know until the day that mind-reading technology is perfected.

OK, good luck fundamentally changing the American legal system with your circular libertarian reasoning.

Seems a bit like the pot calling the kettle black, given that you originally cited precedent in the law for criminalizing motive as a defense for laws criminalizing motive.

I brought up other laws to rebut your criticism of Title VII.  My point is that Title VII is not remarkable in that "thoughcrime" respect.  Your criticism makes no sense unless you're willing to jettison most of the legal system. 

Where did you get this idiosyncratic legal theory from?