Last month, I put the following on my list of potentially popular deregulations:
Create an ironclad free speech limitation on discrimination law, which explicitly includes both (a) political speech, and (b) jokes. Along the lines of, “Expression of political opinions or jokes by co-workers, managers, or owners are Constitutionally protected free speech and can never be treated as evidence of discrimination or a hostile workplace environment.”
“Potentially” is of course the key word. I’m not saying that a free speech limitation on discrimination law is currently popular. I’m saying that actually-existing politicians could plausibly sell the idea and gain votes for their trouble.
This is not true, in contrast, for full deregulation of discrimination. The best reading of the social science is that modern discrimination law is a combination of witch-hunt and shake-down operation – as well as a thinly-veiled mandate for discrimination against whites, Asians, and males. But speaking these truths will probably cost you votes in even the most conservative states in America.
What makes my alternative so much more palatable?
1. It pits one sacred value against another. Few Americans care much about workforce productivity or entrepreneurial autonomy. So if you point out that discrimination law conflicts with either, they’ll just yawn. Many Americans, however, care about free speech. So if you point out that discrimination law conflicts with the Constitutionally-protected right to speak your mind, you won’t just strike a chord; you’ll strike many chords.
2. My alternative doesn’t challenge beloved existing law. Instead, it subtly makes beloved existing law harder to enforce.
3. A free speech exception highlights the sheer pettiness of many discrimination cases. If you can’t make your case without lamenting on-the-job jokes, you don’t have much of a case, do you?
4. Opponents of my deregulation face an awkward rhetorical quandary. If they say, “Hardly anyone wins cases using such evidence,” you can counter, “Well, then what’s the harm?” If they say, “We can’t win cases without such evidence,” you can counter, “Then your cases sound pretty bogus.”
5. My proposal allows for a supportive coalition of multiple somewhat disjoint groups: (a) people who care about free speech; (b) people who care about privacy (since legally nervous employers may fire you for objectionable social media activity); (c) people who think discrimination law has gone too far; and (d) the anti-woke.
Admittedly, you could admit that my deregulation is sellable, but question its merits. What’s the point of excluding political speech and jokes as evidence in discrimination cases?
1. To be blunt, excluding such evidence reduces the probability that plaintiffs in discrimination cases will win. In my view, no such plaintiffs should win, so this is a clear step in the right direction.
2. Excluding such evidence is especially detrimental to the most bogus cases. If jokes are the marginal factor that puts a plaintiff over the top, he doesn’t have a leg to stand on.
3. There is very little risk of “capture” by defenders of the status quo. A political discrimination law could easily be taken over by fanatics who think that right-wing jokes are political discrimination. All my deregulation does is deprive plaintiffs of one important form of supporting evidence to make their cases.
4. My deregulation removes much of employers’ incentive to censor their own employees. True, many employers censor because they’re true believers, or simply to preserve workplace harmony. But many more are only marginally committed. And some are intimidated dissenters. Once the legal danger of work-related speech disappears, at least we’ll see a wide range of personnel policies, rather than the near-monoculture we now endure.
5. On reflection, current discrimination law parallels the set-up of the new Texas abortion law. The new law notoriously evades Supreme Court rulings forbidding governments from punishing abortion. How? By giving private parties the right to sue medical providers for offering abortions. Existing discrimination law, similarly, evades Supreme Court rulings forbidding governments from punishing job-related speech. How? By giving private parties the right to sue job providers for offering free speech. Especially in the age of social media, this amounts to severe censorship virtually anytime you use your real name.
Not convinced? Here’s my challenge: Name any better way to weaken discrimination law and restore free speech with a prayer of political victory. Self-serving bias aside, I have yet to hear one.
READER COMMENTS
Jeff
Jan 5 2022 at 11:49am
I’m not sure what it says about me that I want to be protected against political speech in my workplace.
If I owned a business it seems like I would want the ability to fire someone who bombs the Slack chat with Jack Chick tracts, Ben Garrison cartoons, ActBlue mailers, etc.
1) Is the point you’re making that this speech shouldn’t be used as evidence of discrimination/”violence” against fellow employees? Or that this speech should be constitutionally protected in the workplace? Or both?
2) In most instances, can’t you just be fired anyway? Aren’t most people employed at-will, and cause doesn’t need to be given? So we constitutionally protect the right to sh*tpost in company emails. Can’t a business just fire you anyway?
Mark Z
Jan 5 2022 at 6:45pm
Yeah, a business could just fire an employee anyway. The idea isn’t to make it illegal to fire an employee for political speech. It’s to make it so employers don’t feel obligated to fire an employee for political speech, lest they be sued by another offended employee for ostensibly creating a hostile work environment.
Eric B Rasmusen
Jan 5 2022 at 12:41pm
What you want is not quite what you wrote, I think. You should want:
“Expression of political opinions or jokes by co-workers, managers, or owners can never be treated as evidence of discrimination or a hostile workplace environment.”
In the original, if you classify jokes as “constitutionally protected free speech”, you do a whole lot more: you say that employees who are fired can sue for unjust dismissal because the employer has violated their constitutional rights because they made a joke once and they can claim that’s the reason they were fired. Also, we *want* employers to be able to hire and fire based on political opinions: surely you do not want the require the Republican National Committee to hire Democrats.
I think what are you about is what is above, which is a slight modification of the rules of evidence in application to certain discrimination statutes to bring courts in line with what the laws actually say, not a wholesale change in employment law.
Euglossine
Jan 5 2022 at 1:32pm
I’m still thinking this through, but shouldn’t the right to discriminate against people based on their beliefs and speech be more important to protect than the right to discriminate against people based on gender and race and national origin? I feel like you are trading these two off against each other.
I’m speaking from the perspective of accepting your belief that discrimination should not be regulated.
Dzhaughn
Jan 9 2022 at 1:37am
If you sue your company because it discriminates against you because you were supportive of Trump, Caplan’s rule would not allow you to introduce evidence about how the CEO publicly supported impeachment of Trump.
That marginally deregulates discrimination. Not much, but some.
Maybe you think you shouldn’t be able to sue the company for discrimination at all, but that is about a much bigger question.
Gena Kukartsev
Jan 5 2022 at 2:52pm
Both political and joke categories are extremely vague – near impossible to distinguish from any other speech
Why is this a practical problem at all outside philosophy? The existing legal recourse seems adequate
Jon
Jan 5 2022 at 5:15pm
Please define “joke”.
Matthias
Jan 9 2022 at 1:55am
It’s hard to formally define a joke, but that’s part of why the legal system is run by humans and not computers.
Mark Z
Jan 5 2022 at 6:53pm
One idea to weaken enforcement of discrimination law against speech that closely parallels yours is to make certain classes of civil suits – including discrimination suits – subject to a ‘reasonable doubt’ standard rather than a ‘preponderance of evidence’ standard. It also has the advantage of pitting one sacred value against another. When, as is often the case, the employer is likely to end up paying tens of millions of dollars to someone for allegedly causing what amounts to modest social discomfort, it may make some intuitive sense that you should have to prove they actually did it beyond a reasonable doubt.
Tom West
Jan 9 2022 at 11:41pm
I’d be really curious how many people have *personally* witnessed people making “jokes” that were interpreted as hostile that had no hostile intent vs. jokes that were effective bullying.
For me, it’s one inappropriate joke (for which the person apologized to the person of Polish descent) vs. maybe half-a-dozen that were meant (and in some cases succeeded) to bully a person out of that workplace. (Admittedly most decades ago.)
I’m not seeing the need to protect bullying as a really high Libertarian priority, but perhaps I’m mistaken.
Comments are closed.