6 ms·

>race, color, religion, sex, nationality Wouldn't it be more effective for the law to say that any discrimination that doesn't affect a person's ability to per

>race, color, religion, sex, nationality Wouldn't it be more effective for the law to say that any discrimination that doesn't affect a person's ability to perform the job is not allowed? When you start itemizing specific traits it's a never-ending list. For example, the list quoted doesn't include eye color or hair color, or spoken language dialect, or ...

SamuelAdams 6y ago
Yes, but the case presented focused solely on the definition of "sex" in title VII so that's what the court ruled on. As programmers its easy for us to take it up to a more abstract level, but in the legal world I guess that's difficult to do.
- pc86 6y ago
  It's not that it's more difficult to do, it's that you generally don't do it. SCOTUS in particular will not respond to, mention, or address anything even approaching a hypothetical scenario, which is sometimes frustrating when the specifics of a case aren't just ride for larger sweeping changes that society may want. You'll often hear of proponents of one reform or another saying that a given case is perfect for SCOTUS because it lines up very closely with their policy objectives.
  - rodw 6y ago
    I don't have an example off the top of my head, but I'm pretty sure I've seen arguments presented to the SCOTUS that are absolutely based on hypotheticals, including hypotheticals introduced by the justices themselves. EDIT: Here's a very recent one: https://www.msn.com/en-us/news/us/supreme-court-justice-s-coronavirus-vaccine-hypothetical-could-be-a-window-into-the-future/ar-BB13HDlP https://www.msn.com/en-us/news/us/supreme-court-justice-s-co...
    - pc86 6y ago
      Yes the justices ask questions around hypotheticals and can ask the attorneys to make arguments based on hypothetical situations the justices present, but they hear only specific cases, not hypothetical ones, and the decisions refer to the specifics of the attorneys' arguments and the case law only.
      - rodw 6y ago
        Of course. There's no court case that is based entirely on a hypothetical. But it seems exceedingly common - especially on the scale of SCOTUS - to abstract a specific event or argument to the more general one. Take constitutional challenge to Obamacare for example. I assume they had to point to someone specific and say "this law violates that person's rights", but they absolutely "considered" and "responded to" the hypothetical in that case.
  - deleted 6y ago
    [deleted]
eximius 6y ago
More accurate? Maybe. More effective? No. You'd have endless lawsuits debating what traits do or do not affect a person's ability to perform.
ryanmarsh 6y ago
Yes, kinda. It's called "bona fide occupational qualification". The law states that you may discriminate so long as (race, sex, national origin, etc...) "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise" Seems like we could refactor the law to just state this: You can only discriminate on bona fide qualifications. https://www.law.cornell.edu/wex/bona_fide_occupational_qualification_(bfoq) https://www.law.cornell.edu/wex/bona_fide_occupational_quali...
mulmen 6y ago
The problem with that is how easy it is to construct an argument that something like race is an impediment to work because of the biases of coworkers or customers. Are blue eyed people being discriminated against? If the answer is no then your hypothetical is irrelevant and you are optimizing for the wrong case. These are protected classes to correct a real failing of our social system.
- AdmiralAsshat 6y ago
  I'm sure some albinos could claim discrimination in customer-facing jobs due to skin tone and eye color. It just might not be obvious (e.g. the employer simply never called them back after the interview, rather than hiring them and explicitly firing them later for "scaring our customers").
hpoe 6y ago
Playing Devil's advocate, let's imagine I pour my life savings into opening up a fruit stand, it does well I move to a fruit store that is popular and everyone loves, at this point everything has been bought with my personal funds, it is basically my property, I run it as a sole proprietorship instead of an LLC, I hire people, but ultimately everything is bought paid for and owned by me. I also happen to hate people with purple hair and decide to ban them from my property and refuse to service to them. Now this is my store and property that I own, these are my goods that I sell. Why should the government be able to legally control what I choose to do with my property and my goods, if I want to pour them into a sewer, or set them on fire should I not be allowed to do that? So why should the government force me to sell them to people I do not want to? So the reasoning behind carving out every specific protection revolves around the idea that there should be a good reason for the government to control what I do with my private property, as it extends to reducing my liberty to do with my property what I want, and now becomes a matter of balancing various parts of the implicit social contract. Whether or not this is justified or which side is right is a different discussion but that is why each exception needs to be carved out as I understand it.
- vertex-four 6y ago
  Because you live in a society that mostly functions because people mostly don't discriminate against each other, and the conditions which result in you being able to open a fruit stand for personal profit would be basically impossible without that. Luckily, this is mostly the case today, and for the cases where it's not eventually a law gets passed, so there's theoretically no reason for a broader law assuming that we don't... assuming that the goal is eventual consistency, so to speak.
  - heavyset_go 6y ago
    Some people would rather argue from their hypothetical spherical fruit stand in a vacuum than to argue from reality at hand.
- pc86 6y ago
  You're absolutely allowed to discriminate based on hair color because it's not a protected class. As a society we have decided that discriminating on some things is abhorrent (race, et al), and other things is not (hair and eye color).
deleted 6y ago
[deleted]
pc86 6y ago
Protected characteristics are not an never-ending list, and that's the only thing you cannot discriminate based on. You are 100% free to post a job add saying that those with green eyes need not apply. You'll likely still be sued, and you might even lose, but it won't be due to Title VII.
SpicyLemonZest 6y ago
That's not really a justiciable standard. If I say only aggressive, pushy people can effectively sell cars at my dealership, and a timid person thinks I'm full of it, how's a court supposed to resolve that dispute?
chadash 6y ago
That's not the intention of these laws though. The basic presumption is "it's a free country, so people should be able to discriminate for whatever reason they want". However, when there's an overwhelming need for it, we will make carve-outs for specific situations. In particular things that people really can't change (race, nationality, sex) or that we deem as a society that they shouldn't have to change (religion). For anything that doesn't fall under these categories, it's fair game to discriminate. You don't like vegetarians or people who play tennis? You can discriminate. You're might be a f* moron for doing so, but we don't have laws against that.
- st1ck 6y ago
  > race, color, religion, sex, or national origin Out of these you can't change only race and national origin. Sex can be changed, except on chromosome level. And religion is just as malleable as any ideology. I don't think it's any easier to convert a vegan to a carnivore than e.g. a Christian to Muslim.
  - f1refly 6y ago
    > Sex can be changed, except on chromosome level So it can't be changed after all
will4274 6y ago
Only if you believe discrimination laws are cost free. On the other hand, if you believe that such laws have cost at scale - frivolous lawsuits from fired employees erroneously claiming protection, and more constrained hiring and firing to avoid such lawsuits - then you'd only want anti-discrimination laws for the cases where discrimination has existed historically.

SamuelAdams 6y ago

Yes, but the case presented focused solely on the definition of "sex" in title VII so that's what the court ruled on. As programmers its easy for us to take it up to a more abstract level, but in the legal world I guess that's difficult to do.

pc86 6y ago
It's not that it's more difficult to do, it's that you generally don't do it. SCOTUS in particular will not respond to, mention, or address anything even approaching a hypothetical scenario, which is sometimes frustrating when the specifics of a case aren't just ride for larger sweeping changes that society may want. You'll often hear of proponents of one reform or another saying that a given case is perfect for SCOTUS because it lines up very closely with their policy objectives.
- rodw 6y ago
  I don't have an example off the top of my head, but I'm pretty sure I've seen arguments presented to the SCOTUS that are absolutely based on hypotheticals, including hypotheticals introduced by the justices themselves. EDIT: Here's a very recent one: https://www.msn.com/en-us/news/us/supreme-court-justice-s-coronavirus-vaccine-hypothetical-could-be-a-window-into-the-future/ar-BB13HDlP https://www.msn.com/en-us/news/us/supreme-court-justice-s-co...
  - pc86 6y ago
    Yes the justices ask questions around hypotheticals and can ask the attorneys to make arguments based on hypothetical situations the justices present, but they hear only specific cases, not hypothetical ones, and the decisions refer to the specifics of the attorneys' arguments and the case law only.
    - rodw 6y ago
      Of course. There's no court case that is based entirely on a hypothetical. But it seems exceedingly common - especially on the scale of SCOTUS - to abstract a specific event or argument to the more general one. Take constitutional challenge to Obamacare for example. I assume they had to point to someone specific and say "this law violates that person's rights", but they absolutely "considered" and "responded to" the hypothetical in that case.
- deleted 6y ago
  [deleted]

eximius 6y ago

More accurate? Maybe. More effective? No. You'd have endless lawsuits debating what traits do or do not affect a person's ability to perform.

ryanmarsh 6y ago

Yes, kinda. It's called "bona fide occupational qualification". The law states that you may discriminate so long as (race, sex, national origin, etc...) "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise" Seems like we could refactor the law to just state this: You can only discriminate on bona fide qualifications. https://www.law.cornell.edu/wex/bona_fide_occupational_qualification_(bfoq) https://www.law.cornell.edu/wex/bona_fide_occupational_quali...

mulmen 6y ago

The problem with that is how easy it is to construct an argument that something like race is an impediment to work because of the biases of coworkers or customers. Are blue eyed people being discriminated against? If the answer is no then your hypothetical is irrelevant and you are optimizing for the wrong case. These are protected classes to correct a real failing of our social system.

AdmiralAsshat 6y ago
I'm sure some albinos could claim discrimination in customer-facing jobs due to skin tone and eye color. It just might not be obvious (e.g. the employer simply never called them back after the interview, rather than hiring them and explicitly firing them later for "scaring our customers").

hpoe 6y ago

Playing Devil's advocate, let's imagine I pour my life savings into opening up a fruit stand, it does well I move to a fruit store that is popular and everyone loves, at this point everything has been bought with my personal funds, it is basically my property, I run it as a sole proprietorship instead of an LLC, I hire people, but ultimately everything is bought paid for and owned by me. I also happen to hate people with purple hair and decide to ban them from my property and refuse to service to them. Now this is my store and property that I own, these are my goods that I sell. Why should the government be able to legally control what I choose to do with my property and my goods, if I want to pour them into a sewer, or set them on fire should I not be allowed to do that? So why should the government force me to sell them to people I do not want to? So the reasoning behind carving out every specific protection revolves around the idea that there should be a good reason for the government to control what I do with my private property, as it extends to reducing my liberty to do with my property what I want, and now becomes a matter of balancing various parts of the implicit social contract. Whether or not this is justified or which side is right is a different discussion but that is why each exception needs to be carved out as I understand it.

vertex-four 6y ago
Because you live in a society that mostly functions because people mostly don't discriminate against each other, and the conditions which result in you being able to open a fruit stand for personal profit would be basically impossible without that. Luckily, this is mostly the case today, and for the cases where it's not eventually a law gets passed, so there's theoretically no reason for a broader law assuming that we don't... assuming that the goal is eventual consistency, so to speak.
- heavyset_go 6y ago
  Some people would rather argue from their hypothetical spherical fruit stand in a vacuum than to argue from reality at hand.
pc86 6y ago
You're absolutely allowed to discriminate based on hair color because it's not a protected class. As a society we have decided that discriminating on some things is abhorrent (race, et al), and other things is not (hair and eye color).

deleted 6y ago

[deleted]

pc86 6y ago

Protected characteristics are not an never-ending list, and that's the only thing you cannot discriminate based on. You are 100% free to post a job add saying that those with green eyes need not apply. You'll likely still be sued, and you might even lose, but it won't be due to Title VII.

SpicyLemonZest 6y ago

That's not really a justiciable standard. If I say only aggressive, pushy people can effectively sell cars at my dealership, and a timid person thinks I'm full of it, how's a court supposed to resolve that dispute?

chadash 6y ago

That's not the intention of these laws though. The basic presumption is "it's a free country, so people should be able to discriminate for whatever reason they want". However, when there's an overwhelming need for it, we will make carve-outs for specific situations. In particular things that people really can't change (race, nationality, sex) or that we deem as a society that they shouldn't have to change (religion). For anything that doesn't fall under these categories, it's fair game to discriminate. You don't like vegetarians or people who play tennis? You can discriminate. You're might be a f* moron for doing so, but we don't have laws against that.

st1ck 6y ago
> race, color, religion, sex, or national origin Out of these you can't change only race and national origin. Sex can be changed, except on chromosome level. And religion is just as malleable as any ideology. I don't think it's any easier to convert a vegan to a carnivore than e.g. a Christian to Muslim.
- f1refly 6y ago
  > Sex can be changed, except on chromosome level So it can't be changed after all

will4274 6y ago

Only if you believe discrimination laws are cost free. On the other hand, if you believe that such laws have cost at scale - frivolous lawsuits from fired employees erroneously claiming protection, and more constrained hiring and firing to avoid such lawsuits - then you'd only want anti-discrimination laws for the cases where discrimination has existed historically.