“What usually happens is people just get more circumspect about how they discriminate so they don’t get caught.” -Heather Bussing
When we see wrongs in the world, we often think: That should be illegal. Our culture relies heavily on law to try to change things. Laws do change things, sort of. But not in the ways we think and hope.
Law is a system of rights and remedies. Laws create the rules, then provide a consequence when the rule is broken. But laws look backwards, not forwards. The courts and law enforcement don’t get involved until after something illegal has happened.
Laws don’t really solve or prevent problems.
Many people hope that making something, like employment discrimination illegal, will deter or prevent discrimination. But what usually happens is people just get more circumspect about how they discriminate, so they don’t get caught.
Making a law never solves the problem. It just means that massive amounts of time, energy, and money will be spent getting the courts to clarify what the law means, trying to find ways to avoid having to comply, and figuring out why the law should not apply to a particular circumstance.
It has been 50 years since Title VII of the Civil Rights Act of 1964 was passed. The language is fairly simple:
It shall be an unlawful employment practice for an employer—to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. section 2000e-2
But even after 50 years of litigation, amendments, and additions, we still can’t figure out how to create a diverse workforce without sometimes considering people’s race, gender, religion, and all the other protected and not-protected factors that make up a human being.
There are cases that say that any consideration of race or gender, even giving preference to underrepresented minorities, is illegal. There are also some federal programs that require that women and minorities be represented.
We have all been in the middle of hiring and firing decisions where race, gender, whether someone is married, pregnant, or has kids is considered.
Now religion seems to be a driving force in business decisions, including what benefits get offered. No doubt that issue will take decades and hundreds of lawsuits to sort out.
Often attempts to use laws to exclude one group of people from something backfire. For example, all of the attempts to define marriage as a legal relationship between a man and a woman have resulted in state after state determining that marriage is a fundamental relationship between two people and a legal right that cannot be withheld from anyone by law. That’s the trouble with demanding to have it your way.
Law groups state that laws that seek to protect a certain class can often backfire and make that class less likely to get hired. For example, according to a report by these Orlando lawyers, the sexual harassment decisions and laws in the late 1980’s did more to undermine communications between men and woman at work, and to stifle the ability of women to be hired in leadership positions, than helped it. Men were suddenly terrified of women and just stopped dealing with them rather than risk getting accused of sexual harassment. We are still seeing the “men can’t help themselves” defense to rape and homicide. All of these things have been illegal for centuries. They happen every day.
So laws do not solve social and cultural issues. They will never create true equality between people, because that requires tolerance of differences by both individuals and institutions. And there will never be enough resources to uncover and prosecute every act of illegal discrimination. As the courts are defunded and lawyers can only afford to work for rich people, it will get harder to enforce the laws that do exist.
But before you get depressed because things are so messed up, or get excited because you can get away with things, understand that law is just one small part of how we work.
Law matters because it sets the boundaries and creates meaningful consequences when those boundaries get crossed. If there were no laws, things would be much worse.
But having a law or making something illegal has never changed a heart or mind about what is right, true, or just.
Related Posts:
Diversity: Tampering with Certainty
Diversity: Voices of Discrimination
