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The unintended consequences of the '91 civil rights legislation

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The paper can be downloaded to read here

Here is an overview. 


Mickey Kaus, in linking to this post below (thanks, Mickey!), asks:

If a Hispanic who has performed as poorly and prominently as Patti Solis Doyle can’t be fired without her employer getting grief from Hispanic leaders, isn’t that a pretty big disincentive to hiring a Hispanic in the first place? Message: Stick to white males — if they screw up, you can sack them and nobody will whine.

Actually, that disincentive and that “message” have long been recognized as one of the costs of civil rights enforcement.

A classic example is the Civil Rights Act of 1991, which made it easier for disappointed job seekers to file “disparate impact” claims based on statistical evidence and increased the money-damage awards to plaintiffs.

In this excellent 2003 article, Stuart Taylor Jr. discusses a study by a Stanford economist and a Northwestern management professor, among other evidence, indicating that the 1991 law made “employers in traditionally white-male industries marginally less likely to hire minorities and women.”

How could the risk of high damage awards for discriminating against minorities and women make employers more hesitant to hire them? Because employers know that far more lawsuits are brought, and far greater damages are awarded, for claims of discrimination in firing than in hiring. So the risk of being sued for turning down a minority or female applicant is dwarfed by the risk of being sued later for firing the same applicant after giving him or her a try.

“The increases in potential damage awards,” write Oyer and Schaefer, “coupled with a decades-long trend toward firing-based, and away from hiring-based, employment-discrimination litigation, means the main impact of the act was to increase the costs to employers of dismissing protected workers…. Because [an employer] feels firing-based costs only if it decides to hire, the costs act as an implicit tax on such hiring. Firing-based protections may therefore lead employers to hire fewer protected workers, not more.”

Nor, Taylor continues, were these results unanticipated.

…. In a Stanford Law Review article half a year before Congress passed the legislation, Stanford Law School professor John J. Donohue III and co-author Peter Siegelman documented a major shift in the nature of job-discrimination lawsuits—as well as a spectacular increase in their number—since 1970: “While most cases formerly attacked discrimination in hiring, today the vast majority of all litigation suits challenge discrimination in discharge.” And although the 1964 Civil Rights Act was extremely valuable in breaking down the flagrant discrimination in hiring then practiced by many employers, the authors wrote, the “dramatic shift to firing cases has greatly increased the likelihood that Title VII will create a drag on the hiring of protected workers rather than the positive inducement it originally provided.”

Note that Taylor did not recommend (and, for what it’s worth, neither do I) that Congress eliminate damages for discriminatory firing, “[e]ven if the costs of such lawsuits to minorities and women, not to mention employers, have come to exceed their benefits….”

Racial discrimination is wrong, but that doesn’t mean we should refuse to see the costs of eliminating it. And it is always useful to be reminded that efforts to do good, especially when the power of the state is enlisted in the cause, often do both more and less than the good intended.

Minnow Slayer

by on Aug. 17, 2013 at 7:50 AM
Replies (11-20):
idunno1234
by Silver Member on Aug. 17, 2013 at 8:52 AM
2 moms liked this

I don't know.....what I got out of this is that this 22 year old legislation is basically a wash- it makes employers less likely to fire protected groups due to fear of lawsuits so they are less likely to hire those people in the first place.

I read through most of the paper and the above sentence is pretty much what all of those words added up to.

What people fail to remember is that before this act, blatant discrimination/sexual harassment against women, for example, left them powerless to do anything. 

My take is that you can't legislate attitude change but you can make it clear that certain discriminatory behaviors are unacceptable and then move on to other ways to try to increase opportunities for people, whatever that may be.

 

Roxygurl
by Bronze Member on Aug. 17, 2013 at 8:56 AM
Sadly I agree with you, I've worked with some people who deserved to be fired, like getting high on their lunch break, but the boss was afraid to fire them because she didnt want to chance getting sued.

Quoting candlegal:

My sister is in charge of hiring and firing for her department at a hospital here in San Antonio.   Even as liberal as she is (and she is) she has told how hard it is to fire an african american and how you had better have all your ducks lined up before you even try.

Quoting quickbooksworm:

I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).


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Carpy
by Ruby Member on Aug. 17, 2013 at 8:59 AM

The only experience I have had with cries of racism, was when I did a brief stint as supervisor in a foundry, when we first moved up here. 

All new hires were put on a manipulator for one week.  It was a two prong lift that you "manipulated" to load heavy sand molds onto the line to move down to pouring.  After the one week, then everyone moved out to other jobs.  If there were no new hires then they were rotated daily.  They hired a black guy (there were several blacks that worked there)  and he was placed on the manipulator.  He cried to me "you just put me here because I am black, slavery ended a long time ago"  I replied, no, I put you here because you're new and all new hires start here.  Even the other black guys were telling him that everyone, black or white starts there.  I even had Daryl, the x ray tech, who is black, come tell him that he did his first week right there.  Did not matter.  he walked out in the middle of his first day.

Quoting candlegal:

My sister is in charge of hiring and firing for her department at a hospital here in San Antonio.   Even as liberal as she is (and she is) she has told how hard it is to fire an african american and how you had better have all your ducks lined up before you even try.

Quoting quickbooksworm:

I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).



Minnow Slayer

candlegal
by Judy on Aug. 17, 2013 at 9:03 AM

I hear it occasionally at work.   Not from the majority, but from the same two people.  Luckily I no longer work with either of them, so someone else gets to listen to them. 

You know both of them happen to be Katrina transplants, I wonder if that is just a coincidence?

Quoting Carpy:

The only experience I have had with cries of racism, was when I did a brief stint as supervisor in a foundry, when we first moved up here. 

All new hires were put on a manipulator for one week.  It was a two prong lift that you "manipulated" to load heavy sand molds onto the line to move down to pouring.  After the one week, then everyone moved out to other jobs.  If there were no new hires then they were rotated daily.  They hired a black guy (there were several blacks that worked there)  and he was placed on the manipulator.  He cried to me "you just put me here because I am black, slavery ended a long time ago"  I replied, no, I put you here because you're new and all new hires start here.  Even the other black guys were telling him that everyone, black or white starts there.  I even had Daryl, the x ray tech, who is black, come tell him that he did his first week right there.  Did not matter.  he walked out in the middle of his first day.

Quoting candlegal:

My sister is in charge of hiring and firing for her department at a hospital here in San Antonio.   Even as liberal as she is (and she is) she has told how hard it is to fire an african american and how you had better have all your ducks lined up before you even try.

Quoting quickbooksworm:

I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).




coolmommy2x
by Silver Member on Aug. 17, 2013 at 9:11 AM
I live in an at-will work state and I've never heard anyone complain that they've been discriminated against (at work). Just MY experience.
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Wicked.Jester
by on Aug. 17, 2013 at 12:07 PM
1 mom liked this

I have been in managment positions where the company was going through lay offs.  I could NOT lay off the one black woman in our department....even though she was ALWAYS late, was an underperformer, and was basically useless, because that would have been me laying off the only black person we had.

And no our hiring processes were not discriminatory....we simply did not have a lot of black people applying for jobs in data analytics.  The same could be said for women in general.  There were only three of us. 

Instead, I had to lay off a perfectly good and productive employee who deserved their job a lot more.

Quoting candlegal:

My sister is in charge of hiring and firing for her department at a hospital here in San Antonio.   Even as liberal as she is (and she is) she has told how hard it is to fire an african american and how you had better have all your ducks lined up before you even try.

Quoting quickbooksworm:

I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).



sweet-a-kins
by Emerald Member on Aug. 17, 2013 at 12:16 PM
5 moms liked this

for 12 years I hired and fired people. I never worried about firing any race or sex because they were ALWAYS backed with the correct paperword

I guess lazy people who don't handle their business properly may not like it, they actually have to abide by laws...

and OP, I am sure no white people ever claim they were fired for BS reasons...o wait they do as well! lol

I once has a white man tell me and my boss that I fired him because I was afraid he would take my job one day....and threatened to sue

Too bad so sad for him. Not only did I document all his performance reviews (with his own comments admitting to bad behavior) but I had video of his drunk work shifts I had to send him home from..

Being a good leader means you can back your decisions, period


Quoting quickbooksworm:

I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).


quickbooksworm
by Silver Member on Aug. 17, 2013 at 12:41 PM
The only person who ever gave me issues was the pregnant woman I fired. In the 3 weeks she worked there, my boss had to move her office because she was a smoker and smelled up our office, she was late to work every single day due to "morning sickness", and Then she flipped out in my office and just left one day. I called her to fire her and she said she'd tell my boss this and that which was all made up. What she didn't k ow was part of her freak out and storming off was on the landlord's security camera lol.


Quoting sweet-a-kins:

for 12 years I hired and fired people. I never worried about firing any race or sex because they were ALWAYS backed with the correct paperword

I guess lazy people who don't handle their business properly may not like it, they actually have to abide by laws...

and OP, I am sure no white people ever claim they were fired for BS reasons...o wait they do as well! lol

I once has a white man tell me and my boss that I fired him because I was afraid he would take my job one day....and threatened to sue

Too bad so sad for him. Not only did I document all his performance reviews (with his own comments admitting to bad behavior) but I had video of his drunk work shifts I had to send him home from..

Being a good leader means you can back your decisions, period


Quoting quickbooksworm:

I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).



Della529
by Matlock on Aug. 17, 2013 at 12:46 PM
2 moms liked this

 I was in HR as a personnel administrator handling hiring and terminations (for very large employers and small business, too) and an EEOC for almost two decades.  It was extremely rare to experience the stories I'm reading in this thread, and when it happened, I had no problems proving why the employee was terminated. 

DOCUMENT, DOCUMENT, DOCUMENT.

Della529
by Matlock on Aug. 17, 2013 at 12:50 PM

 LOL, gotta love cameras.  How long ago was this?

Quoting quickbooksworm:

The only person who ever gave me issues was the pregnant woman I fired. In the 3 weeks she worked there, my boss had to move her office because she was a smoker and smelled up our office, she was late to work every single day due to "morning sickness", and Then she flipped out in my office and just left one day. I called her to fire her and she said she'd tell my boss this and that which was all made up. What she didn't k ow was part of her freak out and storming off was on the landlord's security camera lol.


Quoting sweet-a-kins:

for 12 years I hired and fired people. I never worried about firing any race or sex because they were ALWAYS backed with the correct paperword

I guess lazy people who don't handle their business properly may not like it, they actually have to abide by laws...

and OP, I am sure no white people ever claim they were fired for BS reasons...o wait they do as well! lol

I once has a white man tell me and my boss that I fired him because I was afraid he would take my job one day....and threatened to sue

Too bad so sad for him. Not only did I document all his performance reviews (with his own comments admitting to bad behavior) but I had video of his drunk work shifts I had to send him home from..

Being a good leader means you can back your decisions, period

 

Quoting quickbooksworm:

I have never been nervous to fire a minority for doing shit work. I even fired a pregnant woman once (for good reason).



 

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