Should the balance be legally mandated?

According to a CNN report, The Supreme Court is poised to consider a case of worker discrimination that will likely have a giant impact on the way American businesses operate.  The reason is simple: it involves the largest private employer, Wal-Mart, and half the population, women.  That means, of course, that it involves the other half: men.

The modern slant on this ancient issue is: Do women get treated fairly in the work place in terms of their compensation – which includes pay and opportunities for advancement?

One important legal question that arises here is: Should the high court waste its time with a case that, on the surface, only involves a handful of plaintiffs, and allow it to turn into a class action suit involving upwards of a million?

This case attracted my attention for two reasons.  The first is that I fundamentally challenge the moral basis of enforced anti-discrimination.  This strikes at the heart of the right (of individuals) to enter into economic relationships of their own choosing (i.e. free trade).  The second is that I am wary of mechanisms, created by government, designed to look after the interests of those who have not solicited this help.

Without going into the subtleties of class action law, let me make this simple point.  If a claim of some substantial indiscretion, deception, fraud, negligence, etc. is found to be valid in a court of law, then the individual plaintiff is due the prescribed legal remedy.  If, during the course of such a trial, it becomes clear that others may have been similarly victimized, then the judge – as representative of the government – is obliged to condemn whatever general process, platform, procedure, or program that would lead to these predicaments … and to order all of these – if they exist – corrected in the same manner as outlined in the judgement for the original plaintiff.

It is that simple.  There is no need to go beating the bushes on a prolonged, expensive, obnoxious search for other plaintiffs, and then trying to accommodate the processing of a gigantic number of legal documents.  This is an absurd waste of time, and it has led to our becoming the laughing stock of the world in terms of our justice system.

We are the Class Action Generation, and we glorify victimhood.

In my more elegant and streamlined approach, there would be a serious future cost against a business or institution that did not follow the explicit path outlined in a judgement for a plaintiff.  Any business or institution that did not immediately scan its entire structure and domain – worldwide, if necessary – to make sure that similar infractions and injustices were corrected as soon as physically possible, regardless of the cost, would be placing itself at risk for a judgement of condemnation, an order of magnitude higher and more severe than any judgement it may have had to endure due to the initial case filed by a plaintiff.

This would take the burden of procedural cost away from the government, which you and I, as taxpayers, must fund, and it puts it on only the individuals, businesses, organizations, or associations that have not done their due diligence.  In other words, we are all obliged by reality to be ever-vigilant regarding our responsible conduct and fair relations.  This would also remove the incentive for lawyers to go scouting for reasons to file lawsuits; there would be a serious decline in ambulance chasing and the filing of frivolous lawsuits.

Now that that is settled, let’s consider the problem of perception around the demon known as discrimination, or bias.  To discriminate means to make a distinction – in favor of or against – on the basis of a group, a class, or a category.  Of course, we all do this every day, all day, in countless areas of our lives.  This mechanism of looking over a myriad possible choices and then selecting one or some, and moving forward to the next set of choices, is ineluctably human.

There can be no proper governmental edict barring your or my right to do this.  Yet, this is precisely what anti-discrimination laws are all about.  They state that I, as a small business owner, or you, as the manager of a national corporation, may not freely hire employees on the basis of our own preferences.  Laws such as these have arisen due to the aforementioned reflex to embrace our victimhood.

If a company wants to hire (or serve) only whites, there is no problem.  If it wants to hire (or serve) only men, there is no problem.  If it wants to hire (or serve) only heterosexuals, again, no problem.  The reason there is no problem is that “problem” in a social, political, or economic context is only defined when there has been initiation of force.

The real problem is that there are artificial and arbitrary obstacles to entry for businesses that want to compete against companies with such narrow-minded hiring (and trading) policies.  Political action against such governmental bureaucracy and illegitimate legislation, therefore, is called for in order to remedy this.  Beyond these very real legal, technical, and financial impediments, what, really, is to stop the large number of insulted and excluded people – who were “refused” service or employment – from opening up businesses that do hire (and serve) non-whites, women, and non-heterosexuals?  The brutal answer is … nothing.

Nothing but sloth, false pride, and a fundamental confusion around integrity and responsibility.  Businesses that serve (or hire) from the pool of people who were passed over at those “bad” discriminating outfits will eventually gain the business and profits that those others refused.  Add to the natural force of free market competition, peer pressure and honest reporting, and the logical result will be that archaic discriminators will be kept to a healthy minimum.  Nobody can legitimately complain of a restaurant that only serves Muslims, or Latinos, or gays, IF there is a restaurant next door or across the street that does!

By the way, if you’re thinking that I have missed the point about companies, institutions, and groups of people who actively refused to hire (or serve) various folks in the past via violence and/or unjust governmental policies (e.g. lynching, strong-arming unions, sweetheart franchises, enforced governmental monopolies, minimum wage laws), then let me make my stance very clear.  These were (and still are) actual problems on which government must act immediately, as signaled by the initiation of force against individuals.  Government is always obliged to mitigate and/or eliminate these instances as soon as possible.

Let’s circle back to the Wal-Mart case.  Could it be that the plaintiffs – within this company that appears to have an excellent record of non-discrimination and fairness – are simply too socially lacking, too slow, too inflexible, too lazy, too grumpy, too inarticulate, too … inferior for the promotions that they believe they deserve?

And, even if they are correct – that a rational manager would promote them, so what!  I know countless friends and family members who have chosen to leave a company because of personal conflicts and differences of opinion regarding policies large and small.  These friends and family members did so without resorting to the whining stance of the grab-bagging legal victim.  They took their resentments and their anger, and they transformed these into the resolve to not make the same mistakes in the future.

Ultimately, the best and most elegant way for a society to correct cases of mismanagement regarding discrimination is, not to make it illegal but, to encourage individuals to choose more virtuous and responsible paths.  In other words, we ought to support each other and cheer when some of us occasionally need to move on and leave certain ignorant bastards in the dust.