Let’s just be clear on where the status quo is. Eugine_Nier has mentioned disparate impact analysis several times. In addition to that is the far more important disparate treatment prohibition.
In the US, a worker can get fired even if it is not for cause. If you boss thinks you are a terrible worker, you can be fired even if you could prove your boss is wrong and you actually are a great worker. But you boss would be liable for wrongful termination if the boss said “I think [blacks / whites / Germans / Russians] are likely to be bad at your job, and you are [black / white / German / Russian], so you’re fired.” Likewise, an employer can’t refuse to hire on that basis.
Proving that is a separate issue, but having no public policy based on race implies repeal of both disparate impact prohibitions and disparate treatment prohibitions (and lots of other stuff, but it’s complicated).
In practice firing a black worker even if he is a terrible worker leaves employers open to wrongful termination suits. Whereas it’s harder to prove that with not hiring a black worker, so frequently the safest route for employers (especially small employers) is to find excuses to avoid hiring black workers rather then risk getting stuck with a bad employee that you can’t fire.
In practice, complying with laws has costs, some of which fall on innocent and semi-innocent third parties. As a lawyer, this is not news to me. The question is whether the benefits of implementing those social policies outweighs the costs. Clarence Thomas, a black Justice of the Supreme Court of the United States thinks the answer is no.
But that is a very different question from asking, as a matter of first principles, whether certain kinds of discrimination are allowed even if the facts don’t support the discrimination. In the United States, most discrimination of this kind is allowed, and restrictions on the factors employers and others may consider are fairly narrow (race, gender, religion, national origin—not ok. youth, poverty, moral character, basically anything else—ok).
Let’s just be clear on where the status quo is. Eugine_Nier has mentioned disparate impact analysis several times. In addition to that is the far more important disparate treatment prohibition.
In the US, a worker can get fired even if it is not for cause. If you boss thinks you are a terrible worker, you can be fired even if you could prove your boss is wrong and you actually are a great worker. But you boss would be liable for wrongful termination if the boss said “I think [blacks / whites / Germans / Russians] are likely to be bad at your job, and you are [black / white / German / Russian], so you’re fired.” Likewise, an employer can’t refuse to hire on that basis.
Proving that is a separate issue, but having no public policy based on race implies repeal of both disparate impact prohibitions and disparate treatment prohibitions (and lots of other stuff, but it’s complicated).
In practice firing a black worker even if he is a terrible worker leaves employers open to wrongful termination suits. Whereas it’s harder to prove that with not hiring a black worker, so frequently the safest route for employers (especially small employers) is to find excuses to avoid hiring black workers rather then risk getting stuck with a bad employee that you can’t fire.
In practice, complying with laws has costs, some of which fall on innocent and semi-innocent third parties. As a lawyer, this is not news to me. The question is whether the benefits of implementing those social policies outweighs the costs. Clarence Thomas, a black Justice of the Supreme Court of the United States thinks the answer is no.
But that is a very different question from asking, as a matter of first principles, whether certain kinds of discrimination are allowed even if the facts don’t support the discrimination. In the United States, most discrimination of this kind is allowed, and restrictions on the factors employers and others may consider are fairly narrow (race, gender, religion, national origin—not ok. youth, poverty, moral character, basically anything else—ok).