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Why doesn't the anti-discrimination knife cut both ways?

stealthyeliminator

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If it is justifiable to prohibit a business from selecting their customers based on certain criteria, why wouldn't it also be justifiable to prohibit customers from selecting the businesses they patronize based on those same criteria? The customer and business and just two sides to the same transaction coin. Why should customers be allowed to discriminate against a business, which could have a real and significant impact on the success of the business, and therefore the livelihood of those relying on it, when a business isn't allowed to discriminate against a customer seeking goods or services for the same reason that it might hinder their livelihood?
 

utbagpiper

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This is a fine argument to limit the extent to which anti-discrimination infringes on private business. I like to use this argument when it comes to excessive laws imposed on landlords.

But the reason the laws are not and should not be entirely uniform is the question of where power lies.

Why do we prosecute adults for having sex with children while not prosecuting children who have sex with adults?

Why are doctors, teachers, and cops prohibited from having sex with their patients, students, and inmates, while patients, students, and inmates are not prosecuted for having sex with doctors, counselors or jailers?

The clear answer is that the law is in place to protect those in a position of weakness from those in a position of power.

Why are businesses required to meet certain building safety codes that are not imposed on residential construction?

Because businesses invite in the entire community, while a homeowner doesn't tend to do that. And relative size of buildings means far fewer people at risk at any given moment.

Businesses are presumed to be in a position of power over employees. And in most cases they are. Hence, labor unions were created, and a host of labor laws then passed incorporating most all the legit concerns of labor unions (thus leaving labor unions mostly irrelevant and having no purpose but to demand ever higher pay regardless of actual productivity).

Similarly, a business can generally survive while discriminating against a minority, while that minority might have a very difficult time accessing basic services if a business discriminates.

I recall the account of a black woman in the Jim Crow South who told about the only grocery store in town that did not have prices on any items. Customers would hold an item up and ask the owner how much it was. He would blatantly charge black customers 50% more than he charged white customers.

And to top it all off, an individual is an individual and all his individual rights must be respected.

A business owner who opens his business to the public assumes some different role than merely an individual.

The real question is why it is not ok to discriminate against racial minorities, sexual minorities, religious or political minorities, but still ok to discriminate against peaceful, lawful gun owners.

Charles
 
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utbagpiper

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As a little more food for thought, is a recent case out of Utah where the Utah Supreme Court ruled that self-defense overcomes the usual "at will" employment laws of Utah. The case involved some Walmart employees who felt a need to defend themselves from an armed shoplifter who became violent, rather than retreating as required by corporate policy. Walmart fired the employees who sued. The Utah Supreme Court ruled:

This was reported on the KSL website. Some fair use excerpts (I note that much of what I copy below are direct quotes from the Utah Supreme Court decision and thus the property of the public):

KSL report on Utah Supreme Court ruling said:
Five former Wal-Mart employees who said they were wrongfully fired after defending themselves and disarming weapon-wielding shoplifters now have the backing of the state's highest court.

In a 4-1 decision, the Utah Supreme Court on Friday sided with the employees, noting that they had a right to defend themselves. Wal-Mart terminated the employees, saying their actions violated company policy and put their fellow workers and shoppers at risk.

"The right of self-defense is a public policy of sufficient clarity and weight to qualify as an exception to the at-will employment doctrine," the court opinion states. "But we limit the exception to situations where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm and the employee has no opportunity to withdraw."

...

"We conclude that there is a clear and substantial public policy in Utah favoring the right of self-defense," the Utah Supreme Court justices wrote.

The court's said "the right of self-defense is enshrined in Utah statutes," and public policy supporting the right of self-defense outweighs an employer's own workplace regulations when the employee is faced with the imminent threat of serious bodily injury and does not have the opportunity to retreat.

Charles
 

stealthyeliminator

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Hmm. I think it would be incorrect to see the business as generally in a position of power over the consumer, at least in a free market. In fact, it might be true that the business is generally more dependant on the consumer than the consumer the business, and probably true that businesses often take risks in order to facilitate exchange, risks that the consumer needn't worry with.

Additionally I would have to ask, let's say for the sake of argument that we can legitimately prohibit a business from discriminating against certain types of consumers, for the reason that we must prevent consumers from being denied essential goods or services, why wouldn't the justification be limited to only apply to businesses actually providing essential goods and services?

I would also have to add that I believe that viewing the business abstractly while not the consumer may be problematic. Likely we should look abstractly or not, viewing each piece in their relative abstractions or none of them in abstractions. The "businesses" are comprised of individuals. The "consumers" are comprised of individuals. And again, they're two sides to the same transaction coin, mutually dependent on each other, unless government intervention forces an individual to participate as one side of the coin without their consent or desire. Perhaps government intervention actually works to unbalance the power, disrupting the mutual dependence, and contributes to the very problem that the politician would prescribe intervention to remedy?
 

stealthyeliminator

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A business owner who opens his business to the public assumes some different role than merely an individual.

I'm not sure there's much truth to this, to be honest. You don't really say what you believe this role assumed is, nor what difference it makes to the question. Are you saying that an individual who "opens a business" (which amounts to offering himself to be one side of the transaction coin) ceases to be an individual with individual rights?

It may be true that if a business discriminates, it may leave a particular market unfulfilled. Yet how would it be anything but forced labor to require a man to fulfil a market he doesn't want to fulfil?
 

utbagpiper

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Hmm. I think it would be incorrect to see the business as generally in a position of power over the consumer, at least in a free market. In fact, it might be true that the business is generally more dependant on the consumer than the consumer the business, and probably true that businesses often take risks in order to facilitate exchange, risks that the consumer needn't worry with.

All potentially true. But a single business has a lot of power to damage a single employee or customer through discrimination, while a single customer generally lacks a similar power against a business. Consumers or employees generally have to mount organized campaigns and convince many of their fellows to join with them in order to adversely affect a business via a strike or boycott.

I note that anti-discrimination laws (for hiring and renting at least) tend to apply to businesses only after they reach a certain size. In Utah, for example, landlords are subject to anti-discrimination laws only after they have more than 4 units (I think is the number) they are renting. Businesses are subject to anti-discrimination employment laws only after they have more than (I think the number is) 15 employees.

In other words, while a business is truly a small, individual/family affair, the owner retains his full status as an individual. Once the business grows to a certain size, it is no longer a strictly personal/family affair, but is fairly viewed as an entity unto itself.

We might look at it another way and ask if you'd find it an unfair trade to require compliance with anti-discrimination laws (employment or providing services) as a condition of doing business any of the limited-liability legal entities that are created under modern law (corporation, LLC, etc)?

Additionally I would have to ask, let's say for the sake of argument that we can legitimately prohibit a business from discriminating against certain types of consumers, for the reason that we must prevent consumers from being denied essential goods or services, why wouldn't the justification be limited to only apply to businesses actually providing essential goods and services?

Frankly, I think that when it comes to services, they should be.

Or, put another way, at least not applied to non-essential services that could reasonably be construed as promoting a cause or message to which the owner objects. I'm reminded of Jefferson's quote about the unjustness of forcing a man to support the promulgation of a message to which he objects.

As an example if I had my way:

A baker or restaurant could not refuse to provide service to man simply because he was Mormon, Democrat, black, homosexual, or carries a gun. If an individual wants a birthday cake or a sandwich at the lunch counter, the owner should be obliged to provide service without regard to any of those characteristics.

However, if a prospective customer wants 1000 cupcakes to support his Mormon church proselyting activity, or his campaign for legislature, or a wedding cake, or he wants to host an OC event to promote the carrying of firearms, or he wants catering for his Black Liberation Theology congregation, the owner should be free to decline services on the grounds that all of these events are intended to send a message and promote a social agenda.

Businesses should provide general services without regard to the various individual characteristics of the customers. But business owners should not required to provide services to promote a message or social/political/religious agenda to which they object.

I would also have to add that I believe that viewing the business abstractly while not the consumer may be problematic. Likely we should look abstractly or not, viewing each piece in their relative abstractions or none of them in abstractions. The "businesses" are comprised of individuals. The "consumers" are comprised of individuals. And again, they're two sides to the same transaction coin, mutually dependent on each other, unless government intervention forces an individual to participate as one side of the coin without their consent or desire. Perhaps government intervention actually works to unbalance the power, disrupting the mutual dependence, and contributes to the very problem that the politician would prescribe intervention to remedy?

In theory perhaps. But in practice?

Notably, we had no government intervention originally and the equation was decidedly unbalanced. Employers too often treated employees as disposable resources. Miners and factory workers had no workers compensation, no workplace safety protection, no limits on hours worked without overtime, and so on. Robber Barons had sufficient power in the market to force railroads to charge all oil and meat shippers as if they were shipping from the same location the barons shipped from.

In certain cases, industrialists were crony capitalists who used government power to exert control over the market place. But in many instances, their immoral practices that stifled competition and treated consumers unjustly were without government coercion, but were legal.

In other words, the government didn't just decide to exercise power where no problem existed. Government actions were demanded by the public due to the excesses of large and powerful businesses.

As I wrote above, a single business has a lot more power in most cases than does a single consumer or single employee. Employees must unionize and consumers organize to boycott to have anywhere close to the effect on business that a large business can have on individuals.

While any law can be taken to excess, I think the opposite is also true sometimes. We can look at a few excesses and decide the solution is excess the other way: elimination of laws.

I think society is materially better, with all members of society better able to make their full contribution, if businesses are subject to some anti-discrimination laws in terms of hiring and providing services.

We simply haven't seen the problems with individual consumers or employees taking their business elsewhere for bigoted reasons as we saw with businesses engaging in discriminatory practices. So we should be pleased that laws have not be extended to individuals just to satisfy some principle. Rather, legal mandates have remained somewhat constrained--though still too over-reaching for my taste in some cases--to the area where actual problems were documented.

I think this is an important principle to remember. Principles and theories are important. But addressing actual problems while not addressing merely theoretical problems is probably a pretty good practice to maintain.

Charles
 

utbagpiper

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Related question: Workplace and Consumer safety laws

While not directly on topic, I wonder your views on workplace and consumer safety laws.

Do you object to building code safety requirements like functioning fire doors, fire sprinkler systems, seismic and other structural requirements? What about mine safety, and requiring appropriate safety equipment and practices in factories and other workplaces?

Do you object to legal limits on how many hours a truck driver or pilot can work before he is required to rest?

Charles
 

stealthyeliminator

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Sorry, I think that my last question (It may be true that if a business discriminates, it may leave a particular market unfulfilled. Yet how would it be anything but forced labor to require a man to fulfil a market he doesn't want to fulfil?) was actually off topic. I didn't actually intend to debate whether or not anti-discrimination laws are justifiable, only whether or not it is inconsistent to apply them in one direction of a transaction and not the other, when the transactions should be mutually consensual. I know that is kind of a tight-rope to walk without discussing the legitimacy of anti-discrimination laws in general, and, as we see, even I fell to doing it.

So, would it be accurate for me to summarize your stance (on the issue of unequal application) as the following?:
Application of anti-discrimination law may be legitimately applied unequally between business and consumer because A) the business holds a position of power over the consumer and B) the individuals who form the business, to some degree, lose their individuality, and some rights associated thereto, including, to at least some degree, the right to free association.
 

utbagpiper

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Sorry, I think that my last question (It may be true that if a business discriminates, it may leave a particular market unfulfilled. Yet how would it be anything but forced labor to require a man to fulfil a market he doesn't want to fulfil?) was actually off topic. I didn't actually intend to debate whether or not anti-discrimination laws are justifiable, only whether or not it is inconsistent to apply them in one direction of a transaction and not the other, when the transactions should be mutually consensual. I know that is kind of a tight-rope to walk without discussing the legitimacy of anti-discrimination laws in general, and, as we see, even I fell to doing it.

I think it is on topic to discuss whether they are justifiable in certain cases vs not justifiable in others. That is just another way of phrasing your question of why they don't cut both directions.

If they can be justified in one direction, but not the other, that answers your question.

Similarly, I think they can be justified in the case of general goods and services not associated with promoting any message, but cannot be justified in the case of promoting a message.

What we are weighing is the costs and benefits of the laws. Infringing on the "right" of a Rockefeller to negotiate railroad deals that benefit himself and his 90% control of refineries to the detriment of consumers and competitors is quite a bit different than infringing on the right of a little old lady to determine who she rents her spare bedroom too and cooks breakfast for each morning. Forcing a single-man-operation bakery to cater to a homosexual "wedding" is quite different than telling a multi-billion dollar, multi-national corporation that it can't refuse to sell gasoline to a homosexual man.

This is entirely analogous to the difference between telling a large company it can't refuse service to black men, vs trying to tell 45 million blacks that they can't decide to shop at whatever store they like.

So, would it be accurate for me to summarize your stance (on the issue of unequal application) as the following?:
Application of anti-discrimination law may be legitimately applied unequally between business and consumer because A) the business holds a position of power over the consumer and B) the individuals who form the business, to some degree, lose their individuality, and some rights associated thereto, including, to at least some degree, the right to free association.

Once the business reaches a certain size, that is not an unreasonable summary of part of my position.

Don't forget the historic evidence that businesses holding unequal power have been prone to abuse it to their own enrichment and to the detriment of workers and consumers, and thus society as a whole.

Where real problems have been manifest, legal solutions are imposed.

Where real problems have not been manifest, legal solutions should probably not be imposed too quickly. Certainly you'd agree with this position.

Charles
 

utbagpiper

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I'm not sure there's much truth to this, to be honest. You don't really say what you believe this role assumed is, nor what difference it makes to the question. Are you saying that an individual who "opens a business" (which amounts to offering himself to be one side of the transaction coin) ceases to be an individual with individual rights?

It is a position I'm uncomfortable with to be sure. One needn't go back very far in this very forum to find me on the side of opposing all anti-discrimination laws from a similar position as you are advocating in this thread.

I have changed my position for a couple of reasons.

1-I don't think anti-discrimination laws are going away, and so I'd rather operate from a position of preventing gross unjustness in the form of forcing men to promote a message to which they object, and to see equity done for gun carriers and other non-politically favored minorities, than to waste effort tilting at windmills.

2-Having visited with those who personally endured Jim Crow era segregation and discrimination--and seeing how reverse discrimination is affecting some I love--I've come to realize that society is a much better place in the absence of legally permitted discrimination.

We must never forget individual rights. At the same time, we must recognize we live in a society. On an island, alone, there would be no need to speak of individual rights. I'd do exactly as I pleased, when I pleased impacting nobody but myself and being affected by nobody else. What role then for individual rights? Individual rights really come into play when we come off the island and choose to live among others. They become ever more important as we live among those who do not share our view of the world.

Let me suggest some heresy from a man old enough to start realizing I'm not an island. Maybe, we need to consider that individual rights play a crucial role in maintaining an well functioning, peaceful society. This doesn't mean that social concerns over-rule individual rights. Indeed, respect for individual rights act a brake on the mobocracy of simple majority rule. But if application of individual rights becomes a fatal detriment to a peaceful, functioning society, maybe we ought to re-consider something.

The less a business is run by a single individual, the more it is owned by many persons, and run by someone else, or many someone elses, the less it looks like an individual and the more it looks like something appropriately subjected to certain regulations. Without a doubt, the state could rightfully impose anti-discrimination as a condition of limited liability...though I concede anti-discrimination applies to some businesses run as sole proprietorships of someone has retained that organization as their business has grown beyond current limits where anti-discrimination kicks in.

3-There is a difference, some difference--I'm not sure exactly how to put it yet--between being an individual and retaining full privacy rights, vs hanging out a shingle and inviting the community in; advertising to entice them to come in.

It may be true that if a business discriminates, it may leave a particular market unfulfilled. Yet how would it be anything but forced labor to require a man to fulfil a market he doesn't want to fulfil?

To force a man to propagate an idea he finds offensive--the campaign of a candidate he doesn't support, the mission of a church he finds disagreeable, a marriage he believes is offensive--would be grossly unjust.

To force a man to provide a good or service he doesn't already provide, to fulfill a market he wants to ignore, would be crazy.

To tell a business owner who is open to the public that he may not refuse service to provide the general sevices he provides to others to those who happen to be homosexuals, blacks, Jews, Muslims, etc strikes me as a little different than telling him must fill a market he doesn't want to fill.

Charles
 
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sudden valley gunner

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You are a 100% correct Stealthy that the consumer/customer has more control.

The hypocritical socialist/communistic laws creating a one way street limiting taking away the rights (property) of business owners are purely hypocritical.
 

Citizen

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You are a 100% correct Stealthy that the consumer/customer has more control.

The hypocritical socialist/communistic laws creating a one way street limiting taking away the rights (property) of business owners are purely hypocritical.

Agreed--Stealthy makes a great point!

The too-obvious hypocrisy arises--I think--from rent-seekers. A rent-seeker is someone who lobbies government for advantage.
 

carolina guy

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I recall the account of a black woman in the Jim Crow South who told about the only grocery store in town that did not have prices on any items. Customers would hold an item up and ask the owner how much it was. He would blatantly charge black customers 50% more than he charged white customers.

And to top it all off, an individual is an individual and all his individual rights must be respected.

A business owner who opens his business to the public assumes some different role than merely an individual.

The real question is why it is not ok to discriminate against racial minorities, sexual minorities, religious or political minorities, but still ok to discriminate against peaceful, lawful gun owners.

Charles


The example of the black woman in the Jim Crow South is an interesting example, and is a good example of abuse of power. However, I would wonder given the improvements in infrastructure, prevalence of automobiles (and other transportation), the internet (eg. Amazon) and general increase in the number of competing businesses in MOST areas if this would have much chance of happening much anymore.

The business owner is still an individual, and the business is still a business. The distinctions between the two are part of the problem and we should be working to eliminate them, not enshrine them.

I think that the work "discrimination" has gotten so politically charged that the meaning has gotten lost. Discrimination is a valuable part of intellect and decision making. I think the more correct way to phrase the question would be is it ok to "abuse" someone based upon a real or perceived characteristic that has little or nothing to do with the situation at hand?
 

sudden valley gunner

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I visited regularly in Maui for some years. My host made sure that I had a Kama'aina Card to avoid the universal tourist mark-up.

Similarly, I live now on a much smaller Island supplied by ferry, and every thing is marked up to pay the shipping tariff, except the staples at the community food pantry charity.

Kama'aina can also be achieved by being a local haole. There are restaraunts today that automatically charge tips to Japanese customers yet leave it up to the generosity of other patrons.
 

sudden valley gunner

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The example of the black woman in the Jim Crow South is an interesting example, and is a good example of abuse of power. However, I would wonder given the improvements in infrastructure, prevalence of automobiles (and other transportation), the internet (eg. Amazon) and general increase in the number of competing businesses in MOST areas if this would have much chance of happening much anymore.

The business owner is still an individual, and the business is still a business. The distinctions between the two are part of the problem and we should be working to eliminate them, not enshrine them.

I think that the work "discrimination" has gotten so politically charged that the meaning has gotten lost. Discrimination is a valuable part of intellect and decision making. I think the more correct way to phrase the question would be is it ok to "abuse" someone based upon a real or perceived characteristic that has little or nothing to do with the situation at hand?

These appeal to the emotions by the anti liberty works well for apologist.

It is no different than the rational of banning guns because some people abuse them.

Walter E. Williams made a great point, when he says you have to be suspect of laws. Why would many states have to pass laws to segregate? It makes it self evident that people were not obeying what others and the state expected them too.
 

carolina guy

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These appeal to the emotions by the anti liberty works well for apologist.

It is no different than the rational of banning guns because some people abuse them.

Walter E. Williams made a great point, when he says you have to be suspect of laws. Why would many states have to pass laws to segregate? It makes it self evident that people were not obeying what others and the state expected them too.

Blaming an entire group of people for the actions of some members of the group is also a common tactic.
 
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OC for ME

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Please excuse the segmenting, I do this in my attempt to fully and correctly understand your question/point.
If it is justifiable to prohibit a business from selecting their customers based on certain criteria, why wouldn't it also be justifiable to prohibit customers from selecting the businesses they patronize based on those same criteria?
A black citizen must be compelled to shop at a white owned business?

The customer and business and just two sides to the same transaction coin. Why should customers be allowed to discriminate against a business, which could have a real and significant impact on the success of the business, and therefore the livelihood of those relying on it, when a business isn't allowed to discriminate against a customer seeking goods or services for the same reason that it might hinder their livelihood?
A citizen must be compelled to spend his "property" only at government approved businesses?

When the government ventures into compelling a citizen (the consumer) to engage in what should be strictly a exchange between individual citizens, for the purposes of implementing equality, liberty is eroded.

If I miss your question/point, please accept my apologies.
 

carolina guy

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Please excuse the segmenting, I do this in my attempt to fully and correctly understand your question/point.A black citizen must be compelled to shop at a white owned business?

A citizen must be compelled to spend his "property" only at government approved businesses?

When the government ventures into compelling a citizen (the consumer) to engage in what should be strictly a exchange between individual citizens, for the purposes of implementing equality, liberty is eroded.

If I miss your question/point, please accept my apologies.

I think you could take it s step further and say that liberty is destroyed. One is either free or one is not, and therefore a slave.
 

MSG Laigaie

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Kama'aina can also be achieved by being a local haole. There are restaraunts today that automatically charge tips to Japanese customers yet leave it up to the generosity of other patrons.

When I was on Guam there was a separate menu for customers of japanese lineage. We went in to a restaurant and gave us menus and the coffee was eight dollars (early 90s) and we were a tad shocked until they apologized and gave us "local" menus. Coffee dropped to a buck.
The japanese were not polite to Guamanians in the mid forties. A grudge is not a bad thing, it keeps the memory sharp.
 
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