Crimes of the Mind

The Supreme Court ruled unanimously today "that circumstantial evidence can be used in lawsuits accusing companies of discrimination, a decision that will make those cases easier to prove." In cases where multiple factors, gender among them, appear to have been in play in the firing of an employee, it's enough for the employee to adduce evidence that gender played a "substantial" role in the decision. It's then up to the employer to prove that the person would have still been fired absent gender considerations. The slip opinion is available here.

Legally speaking, the ruling certainly seems sound enough: it's not all that often that you can get all nine of these folks to agree on something. But the burden employers are supposed to meet here is hard to decipher. How is a firm supposed to prove what it would have done in some counterfactual situation? Sure, you can see what was done in other, similar cases. But no two employees are ever exactly the same, and there's always an irreducibly subjective character to employment decisions. Will we see companies begin to hire statisticians to isolate decisive variables in HR calls?

Comments

[fyodor]

Dig that blogpost title! Yeah, that's exactly what anti-discrimination laws are. But this is one issue I'd probably never wanna reveal my true thoughts about to any of my friends. Good thing none of them read Reason! (that I know of anyway...)

[W]

So.. what are they?

[fyodor]

W,

Are you asking me? What are anti-discrimination laws? Why, they're Crimes of the Mind! Crimes of conscience, crimes that can only be determined by knowing what's going on inside someone's mind. Which, of course, we can never REALLY know! Plus, while bigots are vile morons, my objection to criminalizing conscience and motivation goes back to the old adage that I may disagree with what you say but I defend your right to say it! Even Ted Rall has criticized the principle behind Hate Crime legislation, depicting a speeder getting an additional fine for being on his way to a Communist Party meeting, and Hate Crime legislation is based on the very same principle. But enough, I kinda hate talking about this.......

[junyo]

Why, they're Crimes of the Mind!
They stop being crimes of the mind when your particular prejudice moves you to fire or harass someone. Those are actions, and you're held accountable for those.

[Skeptikos]

Whew! You ask "How is a firm supposed to prove what it would have done in some counterfactual situation? Sure, you can see what was done in other, similar cases. But no two employees are ever exactly the same, and there's always an irreducibly subjective character to employment decisions." As someone who has frequently been in the position of approving hires and terminations you confuse me. Subjective? Frankly subjective hiring and firing is a lousy managment formula, that kind of a statement would have me looking at a manager crosseyed. If you are hiring/firing people it better not be "subjective"! That kind of thing has no place, and I'm not talking ethics here, I'm talking about cheating your company. Performance is and should be Objective, I would never except such balderdash from someone who worked for me. Once again I am not talking ehtics, I am talking basic business. If a manager reporting to me cannot give me the documented run downs on his or hers hiring and firing decisions, I would assume they are not doing their job. Now, wheter or not this should be law is another matter, perhaps it is a matter of freedom to be able to "worldcom" or "enron" and drive yourself out of business "subjectively". But for me, I'll work and do business with folks who know that subjective just doesn't cut it in the real world. When you go for subjective over the documented objective, you get situations like the one in Tulia that you posted above, in the end Objective (documented truth)walks, subjective (bullshit) talks. I'll stay with companies that know the difference. 2 + 2 still equals 4. I'm not just asserting that (I hope you wouldn't believe me if I could only assert that "subjectively") and I can document (prove objectively) that. If the managers reporting to a CEO cannot document that, you have got to wonder what kind of a company we are talking about.

[Julian]

Well, firing someone is obviously an action. But firing someone isn't a crime. The trick is when there are multiple reasons for firing someone. How do you tell whether any given instance is a case of gender discrimination, or a legitimate termination carried out by someone who also happens to have some ugly views? How do you tell how much weight the forbidden criteria had in the decision?

[Julian]

Well, I don't hire or fire people for a living, so to some extent I'm inclined to defer here. I guess for some jobs there are pretty straightforward output numbers or profit/loss figures. But it seems like there are plenty of jobs where it's hard to quantify. Take my job. It's not clear that the effect of any article I might write on magazine sales, one way or the other, could be isolated. So it comes down to whether the grand pubas think my writing is any good. And even where things can be quantified, again provided you can't isolate the specific contribution any one employee makes to company revenues, there's the question of how to weigh them. Maybe you work in a field where objective decisionmaking genuinely is possible, but there are plenty in which I suspect that this vaunted objectivity is chimerical.

[junyo]

Julian:
That's what the Court is saying. If I'm treated differently than other employees, I don't have to take a picture of the boss in a sheet and pointy hood, the jury now has the ability to infer discrimination from the circumstantial evidence. I have hired and fired people and as Skeptikos says, you should, to the extent possible, be completely objective in your dealings with employees. Therefore I've had employees that I personally despised be my best performers and fired people I considered friends. Its a fine line (and a cliche) but business is business. Rules and standards, consistently applied, keeps you out of this kind of mess. If Joe A does X and doesn't get fired for it, you darn well better not fire John B if he does the same thing, no matter how much of a prick John is. Document every conversation you have with employees to build a paper trail of warning, warning, final warning, termination. The only companies/managers effected by this are companies that want the ability to treat certain workers differently than the rest, i.e. discriminate.

[fyodor]

junyo,

As Julian points out, firing someone is not a crime. It is your motivation for doing it, i.e. the reason WHY you did it, that criminalizes it.

Julian,

Re: "How do you tell how much weight the forbidden criteria had in the decision?" But then, how can you ever tell if the forbidden criteria had ANY weight in the decision? Unless, of course, if the decision maker says so!

[Julian]

But business ISN'T just business, at least not always. Imagine I'm hiring an adminsitrative or perosnal assistant. There's some threshhold for research ability--punching things into Nexis, writing memos, whatever. But often you'll have many candidates who are all competent to do that. Ceteris paribus, I also care whether this is someone I find it pleasant to work with, can bounce ideas off fruitfully, etc. At the margin, that might even lead me to choose a candidate who fared slightly worse than another on some other, more easily quantifiable dimension. How do you "document" that?

[Jough]

Discrimanation laws infringe on individual rights, freedom of speech, assembly, etc. Instead of an "us vs. them" mentality, I think of all individuals as corporations. I work for a company, but I consider this to be a form of contracting. If I dislike something about my employer I may decide to fire that employer and hire on with a new one or myself. If I fire my employer or employee because they are Irish, gay, stupid looking, or female, that is my own business - freedom of expression. I have not wronged a person by refusing to employ the person. I have only wronged them if I refuse to pay them for an agreed upon service. This is a two-way street. I don't see anything wrong with a Chinese or Mexican restuarant (or other establishment) throwing my job application in the garbage because I'm of European heritage. They should have the freedom to spend their capital as they see fit, and I should have the freedom to tell my friends how they run their business.

Is it so wrong?

Lawyers don't make much dough under this belief system....

[Will]

The objectivity of which folks are speaking is largely spurious. The effect of these laws is to cause employers to create files on their employees that contain every minor transgression so that if it becomes necessary to fire (because you don't like them, or they make bad coffee, or whatever) you have an "objective" record of poor performance. But the decision about what to include and exclude from such files is totally discretionary (subjective). Otherwise, the effect is to create discrimination in the application vetting process. Non-minority men will be favored because they pose less of a potential problem should you want to eventually fire them.

[fyodor]

junyo,

As much as you try to be objective, someone somewhere is going to think you're not.

Jough,

Of course you're right. But let's not just dump it all on the lawyers. It violates a basic sense of fairness and decency to be judged on a basis that would seem to have nothing to do with your job. But there are just some things the law cannot do anything about, and trying to make it do those things just creates an even bigger mess....

[junyo]

fyodor,
...the reason WHY you did it, that criminalizes it. And that's why you have a standardized policy. You remove the element of subjective decision making. When event X occurs you are fired. The manager didn't make the decision, they simply informed you of it. Makes filing a claim real hard when the reason is in black and white.

Julian,
By doing standard length interviews so as not to give someone the ability to say you hustled them through after seeing that they were fat/thin/black/Latin/Asian/old/young/disabled. By not asking questions that aren't directly related to a job duty. For instance, "Do you have kids?" seems like a friendly question, but it'll bite you, since bias can be construed against either answer and it really has nothing to do with the job, since kids or no, I expect you here on time and not to be absent excessively. So you don't ask. You don't ask about "Any weird ass religious holidays you gonna want off?" for the same reason. Yes, hiring for certain positions involves subjective decisionmaking. But you always strive to reduce the appearance of subjectivity.

[Warren]

I suppose it would just be silly of me to suggest that in a free society, employers should be allowed set their own criteria for whom they hire and fire.

[fyodor]

Warren,

Of course. But when people rationalize that firing for the wrong reason is an act of doing someone harm, then they see your statement as the same as saying that in a free society you should be able to set your own criteria for who should get beat up. And that's why we have to address why it's not the same thing.

junyo,

I heard you the first time. But two things. First, that's nice in theory but I don't think in reality all hiring and firing decisions can be stripped entirely of subjectivity. You say you're a manager so supposedly you know. But maybe you've just deceived yourself, that happens. I've been fired four times in my life, and I wouldn't claim there were entirely objective reasons for ANY of those firings. So there, I have real world experience in the matter too. Julian and Will have given you good reasons to doubt the universality of objective hiring and firing criteria. I don't suppose there's anything I could add.

Secondly, you don't even address the so what of it all. So what if you DO want to be able to use subjective criteria? That doesn't mean you'd resort to judgments based on bigotry! Are subjective criteria somehow immoral in and of themselves? I think it's ridiculous to outlaw subjective criteria. You tell us HOW (supposedly) to deal with such laws, but you fail to justify them.

[Jim]

My experience has been that the 'objective' criteria are used as a means to selectively fire the people they want to get rid of for other reasons and to document it in such a manner as to prevent lawsuits. For example, someone they wish to get rid of someone because they're lazy and useless, they fire him because they checked his phone records for 'too many' personal calls, or find some 'offensive' emails he sent or an 'objectionable' web site he visited. Of course if the productive people in the office have done the same things nobody notices. Problem is, it is too hard to convince a jury that someone was fired because their performance was weak (especially when output is subjective, as in Julian's case) but much simpler to point to objective rules. The rules are defined subjectively enough to allow interpretation liberal enough that just about any employee fits the description of breaking them. This allows employers to fire who they really want, for reasons that appear objective, but probably are not the reasons they were really fired (even though they may be good reasons). As someone else pointed out above, there is no appearance of other employees not getting fired for the same things because either nobody checks up on them or it is not documented if they do. The end result is a lot of bullshit and companies are still free to discriminate when they want to.

Of course companies fire minorities or women at their own risk - even if they have good reason. A woman I hired to work for me at a former employer was fired some time after I left. After working with her for a short time I had determined that she was a gossip, spent too much time BSing with other employees to know as much as she did, caught her fommenting dissent among people (you know what so-and-so said about you?) and demonstrated incompetence at some basic tasks her educational background should have dictated she know. I'm sure they had good reason to let her go but she turned around and sued them because she was the only female engineer in the company. I don't know if she won or not but it cost them money defending themselves in either case. Glad I wasn't around to have to deal with it.

Discrimination laws as currently in place do nothing to prevent discrimination from occuring, but they do increase the cost of employment in general and actually encourage some unfair discrimination such as not hiring any more 'high risk' empolyees than necessary because you risk lawsuits if you have to fire them later. This court ruling only makes it worse.

[jomc]

if the SC were really concerned about labor market discrimination, perhaps they'd overrule Parrish vs West Coast Hotel?

[T. Hartin]

As someone who has done both hiring and firing, I can assure you that in many settings the decision to fire is made, and THEN the "objective" criteria are consulted. A close reading of "objective" criteria will generally reveal a firm foundation in . . . subjectivity, anyway.

I can also assure you that the antidiscrimination laws have made hiring someone in a protected class a high-risk endeavor, and that this decision has only turned the screws tighter. It is only rational to try to avoid hiring someone who can bring lots of legal claims against you if they don't get treated to their satisfaction, after all, when you have perfectly competent alternative hires to hand.

[junyo]

fyodor:
In reality can you strip it of every trace of subjectivity? No. Can I make it look objective? Yep. And at the end of the day, I'm just trying not to get sued. This Supreme Court ruling doesn't really change things for companies that have a good policy in place, because it's already so easy to get sued smart people have learned to play C.Y.A. already. Jim's point that almost anyone can be fired for "objective" reasons is a product of that fact. If I want you gone, I can hang over your shoulder waiting for you to violate policy, document that, and fire you with little too no chance of you successfully filing a claim. And to any court that is a completely objective firing.

As to the "so what of it all" I'm actually fine with subjective criteria up to a point. I wouldn't hire someone with purple hair and rings through their lip, eyebrow, and nose to do customer service work. It's a judgement call on my part that the choices that this person has made with regard to their appearance doesn't bode well, justified by the objective fact that their appearance will impact their performance. Your appearance, your manners, your language are largely matters of choice, and people should bear some responsibility for the choices they make. On the other hand it's a complete different thing to make subjective decisions based on things that are not a matter of choice, such as race, gender or disability. Are you saying that a boss coming into the office and saying "I've gotta let some people go, and since I never liked [insert ethnicity here] all the [members of said ethnic group], regardless of performance, are fired..." should be okay?

[Plutarck]

fyodor:

You aren't alone in feeling that way - I feel precisely the same way.

Sure, I don't like being discriminated against for any reason whatsoever...but then, I don't feel it is a violation of my rights for people to not like me, or not do what I want them to do - such as enter into a voluntary trade, which is what employment is.

I fully understand the real effects widespread racism can have in a system, even if it is of the fully voluntary type (ie - marginalization and rejection leading to violence and crime, etc)...but I fail to see how this is absolutely neccessary to avoid things like that.

For me, the case for something as inherantly horrifying and abominable as Thought Crime and, if I may dub it, Crimes of Voluntary Preference (prefing one thing to another - such as prefering to live in a neighborhood composed primarily of own's own racial group, or work with people of a certain gender, etc) must be really, really, incredibly compelling, and there be must truly no better way of handling it. However, I simply don't see that case - and no, given that apparently such beliefs are already considered to be such crimes - at least culturally - ...I'd prefer not talk about it around people I don't already know agree, either.

[fyodor]

junyo,

Re: "And at the end of the day, I'm just trying not to get sued." And you think that's GOOD?? To HAVE TO be in that position, I mean? At least I think you're saying that! Hey, NO WAY I'm trying to criticize you for trying not to get sued, I don't blame you one iota for that! One important point here is trying not to get sued is not the same thing as trying to run a business, so when some posters here talk about the COSTS of compliance, that's JUST what they're talking about!! So sure, try not to get sued, but understand that it's NOT good to HAVE TO worry about that (other than for genuine breach of contract)!

As for this not effecting companies with good policies, two points. One is what about companies on the margin? Not everyone fits neatly into good or bad, there are surely companies who would deal with this stuff well enough to cover their butts in lieu of this decision but not well enough to deal with it now. Secondly, what about companies who DON'T have good policies? Your implication is that they deserve to be sued, but you don't make that case! Instead, you seem to endorse the dishonest game you admit must be played in which employers PRETEND to use objective criteria when they really don't and ultimately can't! This is the kind of thing that makes kids hate the world of adults!!

Re: "Are you saying that a boss coming into the office and saying "I've gotta let some people go, and since I never liked [insert ethnicity here] all the [members of said ethnic group], regardless of performance, are fired..." should be okay?" Sigh, well that's the point I addressed above. There are things in life that I don't personally find "okay" but which I don't think should be criminalized, for a variety of reasons, some of which I've addressed, some of which other posters here have addressed. I know it's a distinction that eludes most people, and that most people would find my POV racist, which is why it's not fun to talk about. But to reiterate:

As Warren says, in a free society, an employer would choose his or her own criteria for hiring and firing. I.e., it's a simple matter of freedom.

As Jough points out, employment is a two way street based on freely made decisions.

As Julian and I pointed out, firing in and of itself is not a crime. Firing or refusing to hire a person is not coercion because no one else is responsible for that person's employment. Another way to look at that is that no one has a RIGHT to be employed, for reasons good bad or indifferent, it's just not a right. Employment is a contract.

As the title of this blogpost implied and as I followed up on myself, the "crime" of discrimination is a crime of the mind, a crime of conscience. This makes such criminalization abominable for the same principle reflected in the idea of freedom of speech. And just as freedom of speech is not limited to speech of which I approve, freedom of conscience is not limited to ideas of which I approve. The fact that discrimination involves an action is irrelevant since it is the MOTIVATION for the action that criminalizes it. Plus, basing the criminality entirely on motivation makes enforcement a nightmare because how can you ever TRULY know what's in someone's mind?

You previously replied to my point about criminalization based on motivation by saying that that's why you need a good standardized policy. But that's looking at things backwards. You explained how to DEAL with the law, but it has nothing to do with JUSTIFYING the law. Hey, congratulations on having a good policy at your company. But every company should be able to decide for themselves what a "good policy" is, for the reasons I've just laid out. Even your company would probably do better not having to worry about getting sued unless you actually failed to pay someone what you promised or practiced some other type of actual fraud or breach of contract.

Okay? Whew!

[fyodor]

junyo,

Add freedom of association to the reasons why I think that discrimination for reasons I personally find vile should be legal. I.e., freedom of association and freedom of conscience I consider rights, whereas I don't consider employment a right. I guess that's it in a nutshell!!

[LobelWeiss Nick]

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DATE: 05/20/2004 11:11:43
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