What is the rationale for a federal law , sponsored by Tammy Baldwin (D-Wis.) and others, prohibiting discrimination in employment on the basis of sexual orientation ? Its advocates concede that the private sector has largely adopted nondiscriminatory policies.
In a moment of candor, Barney Frank allows that "corporations recognize the value of diversity, the need to get the best people and the idea that a welcoming environment is good for business. "
Precisely. Economist Gary Becker won the Nobel Prize, in part, for work suggesting that, under certain circumstances, the free market will tend to drive out irrational discrimination. If I don't hire the most talented people because they are black or gay or born-again, my competitor will and, ultimately, make me abandon my discriminatory ways or get my clock cleaned in the market place.
This suggests that anti-discrimination laws are less critical when we think they are. Although they may re-inforce social rejection of discrimination, it is the self-interest of employers that is far more critical.
I have always thought that Becker's theory fails (and he doesn't think it applies in all cases) when discriminatory ideas are socially pervasive, i.e., when few or no competitors would choose not to discriminate or when the market may have a taste for discrimination that makes it rational for me not to hire employees that my customers may not like.
But, ironically, those are the circumstances in which a discrimination law is unlikely to be passed.
I think that's where we are with employment discrimination against gays and lesbians. I don't contend that it never happens but the powerful social and economic forces allied against such discrimination may make the passage of a law symbolic at best. It won't stop much additional discrimination.
Of course that doesn't mean that it shouldn't be passed. As I argued during the debate on the marriage amendment, the symbolic uses of the law is important and to say it won't stop much additional discrimination is not to say that it won't stop any.
But there is a cost to such laws. When my client tells me that it wishes to fire someone, my first question is whether that person is in a protected class. I ask this, not because I fear that they are engaged in discrimination (HR professionals are very unlikely to do so), but because it raises the ante. We have to have a "better" case than we otherwise would need. While that might sound harmless ("why shouldn't you have to have a good case to fire someone"), the law does not generally require a "reason" for the dismissal (or the resignation) of employees. When it does, a business has to factor in the probability that it will not be able to convince a judge or jury of the reason for its action.
This imposes a cost on business. Maybe the cost is worth it, but it won't do to pretend that it's free.
The other issue, of course, is whether such a law would require employers to extend domestic partner benefits. That has not generally been the case, but it would be foolish not to admit the possibility.