From: roger@crux.Princeton.EDU (Roger Lustig)
Subject: Re: Homophobia
Originator: news@nimaster
Reply-To: roger@astro.princeton.edu (Roger Lustig)
Organization: Princeton University
Date: Mon, 11 Jan 1993 21:46:40 GMT

In article <C0nDoC.GD3@watserv2.uwaterloo.ca> msmorris@watsci.UWaterloo.ca (Mike Morris) writes:
>Steve Pope writes:
>  Morris indeed believes that it should be "allowed" that
>  employees be firable for Jewishness, since Morris believes that
>  employees should be firable for *any* reason.  Thus, allowing the
>            ^^^^^^^^^^^^^^^^^          
>  firing of Jews moves us a little bit closer to his ideal.

>I know what you mean by this, Steve, but just to underline what I do
>believe: I do not believe that employees should be firable for
>*any* reason. I simply believe that the law should not punish employers
>for choosing grounds to fire which may be in themselves immoral.

That's not what the law does.

>I believe rather that the relationship between employer and employee
>ought to governed by a contract, which contract will lay out
>the only acceptable grounds for firing. I believe there is no
>reason why, in the vast majority of cases, employers would not
>*want* to sign a standard contractual clause, saying something like ``the
>employee shall not be terminated for any reason other than one
>relating to job performance''. I believe such a clause in other
>words *would* become standard in this society if there were no
>non-discrimination law. 

Yet there have been many times and places when there were no such 
laws, and no such contracts have ever arisen.  In fact, I can think
of no place where the enumeration of rights (small R) of the employee has
ever been granted by an employer except after long struggle.

To another topic: you tut-tutted about guns being behind the enforcement
of laws.  So what's behind the enforcement of a contract?  Court, no?
And how does the court bring about compliance?  Yup.

There's a law one way or another.  And, if nothing else, explicit laws
about contracts -- you don't expect there to be a court that adjudicates
contracts without there being some contract law, do you? -- are likely
to include restrictions as to what may be included in, or excluded from,
a contract.  If nothing else, this streamlines the judicial process by 
allowing courts to handle new cases instead of the old ones over and
over again, and shortens the time elapsed before justice is done.  And
you know what justice delayed is...

Speaking of delay, do you suppose that the legal resources (including
ability to delay) of employer and employee are typically equivalent?
That, if arbitration is always the result of such a dispute, that
there will not be a great deal of incentive for the smaller party
(the employee) to capitulate rather than being pauperized by the 
proceedings?

>I also believe that the ``reasons relating
>to job performance'' may not be so easy to define (except of course
>by legal fiat) as my interlocutors seem to think.

Yet thousands of firings for just such purposes happen every year, with 
hardly any appeals.

>Steve writes:
>  What bugs me is that while Morris is not in favor of discrimination,
>  he very readily *accepts* it if it shaves things in favor of his
>  philosophy.  Morris will permit massive discrimnation if it
>  allows just a little more conformance with a purely theoretical
>  advantage.  

>I told you, Steve, that I would be willing to accept discrimination
>in my direction as well for the same reason. 

But only if the society were constructed up and down on classical
Liberal lines.  Which is not likely to happen...

>I have also retreated
>on my support for CO2, for the reason that, though it moves in the
>direction of attacking the non-discrimination laws I don't approve of,
>I now agree that it does so in an unprincipled and unfair way.

Well, we can go further.  Remember that we are optimizing under constraints,
i.e., that we are not living in the perfect society.  We need to find the
right remedies in OUR society, in OUR governmental system, not vis-a-vis
one that we'd like to see imposed someday.

>  The problem, Morris, is that discrimination is *real*, whereas
>  the advantages of having total employer discretion in firing
>  (which CO2 doesn't come close to giving them, anyway) are
>  somewhere between "unclear" and "nonexistent".

>No, Steve, I think the reality is quite different. The non-discrimination
>laws in reality *immediately and directly* limit an employer's Right
>to associate with whomever he wishes (i.e. Right to make up his
>own reasons for hiring B rather than A). 

As do many, many other things.  Such as the fact that we aren't the
onlyu country on earth, and that our government has to take that into
account in all kinds of ways.  There are LOTS of constraints on our Liberty
-- not all of which we can get rid of so easily.  

We can either pretend that the constraints aren't there, or we can muddle 
through and try to modify the system we DO have in order to increase
liberty.

And, as you know if you've ever taken linear programming, the constrained
and unconstrained solutions don't always look at all alike.

>The *reality* also is that
>these laws add a whole big bunch of mickey-mouse policing over
>employers, so that it is now near impossible to fire anyone for
>any reason for fear of the lawyers. 

Utter nonsense.  Plenty of people get fired.

>And the *reality* is that the law,
>as the law currently stands, puts a big neon sign over the head of any
>minority person, warning the employer that if he hires this person,
>he had better dot his legal i's and cross his legal t's extra carefully,
>i.e. making it rather less attractive for the employer to hire this
>person than it otherwise would be. Plus there's the *reality* that
>any employer who's willing to argue before a court of law that
>he fired someone *because* he found this person is heterosexual (what
>I think would be implied by the objection that if ``heterosexual
>orientation'' were added, then an employer could fire anyone) typically
>has no problem coming up with some excuse other than bigotry for firing
>a minority person. The reality is, these laws cast a net of suspicion
>over many innocent people (i.e. drive political reaction), and they drive
>the real problem of discrimination underground.

Funny, it sure looks like it's still above ground to me.

Roger