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 ...
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.
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.
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").
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.
This is a bad example because discriminating against people with purple hair is absurd on its face, and doesn't lead people to question why that should be allowed.
Here are some better examples:
1. A big and tall clothing store that discriminates against smaller customers.
2. A cafe that discriminates against people who are assholes (to the staff).
3. A retailer that does lots of business on the weekends that discriminates against hiring people who can't work weekends for non-religious reasons (e.g. because they have a sports league they do on Sundays).
4. A restaurant that discriminates against people with vegan/carnivore/keto/raw food/etc. diets by not having acceptable meals they can eat.
5. An airline that discriminates against obese people by making them pay for as many seats as they are actually using.
A lot of "discrimination" is reasonable. Anti-purple-hair prejudice is not.
None of these are discrimination in the narrower sense that it's usually understood as.
1 and 4 don't actually ban those people, they simply don't provide any services that those groups of people would want.
3 is choosing not to hire people who don't actually fit the requirements of the job.
5 is paying for usage - obviously a reasonable concept, though specific policies may turn into discrimination.
2 is a reactive policy to something you have complete control over: your own behaviour. They don't care about any characteristic of you, except that you follow the rule of being polite to their staff. If the rule to follow becomes discriminatory then you'd have an argument - but that's not the example you brought up.
Yes, these are all arguments you might be able to use to varying degrees of success to defend yourself against a discrimination lawsuit, but that's a lot more hassle to deal with than if said lawsuits are already just invalid on their face because discrimination is legal generally except for a few specific kinds.
Also I'm not as optimistic as you are that some of these defenses would work.
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.
> "You're absolutely allowed to discriminate based on hair color because it's not a protected class."
The "not a protected class" counterargument is self-defeating because it suggests that discrimination was A-OK before that protected class was created by law. If illegality does not imply immorality, as is often said on HN, then conversely legality does not imply morality.
I don't think you're saying anything different than the comment you're replying to. They are themselves replying to the question "well, why not just forbid discrimination on anything except the ability to perform the job", and their answer is the same as your second paragraph.
>Why should the government be able to legally control what I choose to do with my property and my goods. ... So why should the government force me to sell them to people I do not want to?
Because your property and your ability to sell goods is directly supported by the people you discriminate against.
How do people, customers and employees alike, get to your property? Roads? Helicopter overseen by the FAA? How do packages get delivered over the roads, semi, USPS, UPS/fedex. Who pays to protect your building from crime and fire, who pays for the energy infrastructure, who pays for the teachers teaching your workforce?
Your store isnt an isolated self sufficient entity, its part of a web of interconnected forces mutually benefiting each other. There is a social contract, that if you want to profit off the infrastructure of the United States, you wont discriminate.
The entire premise of government is that you give up some of your personal freedoms in return for rules in a society. What you're saying makes sense in an anarchist regime, but that's not what we have today.
Also, your right to private property is, itself, protected by the government. Without that protection, I could steal from your fruit stand with impunity (as long as I have the bigger gun).
Could you may be think about how you were able to do the said fruit stand business in peace, take a currency as a payment and not worry about bartering, not worry about your business being stolen outright my guy with biggest muscles or how people are able to come to your fruit stand in the first place etc? Unless you are thinking of your business in a vacuum, then go ahead and fantasize.
If every business in town discriminates against purple-haired people, for example, the owners of the one business to break ranks leave themselves open to harassment up to and including being murdered. Even if no business wants to discriminate, being the first to make the move sets you apart, and open to retaliation from the consumer base. The government mandating hair-color-equality dissolves the problem very neatly.
> Why should the government be able to legally control what I choose to do with my property and my goods...
When you run a store on your private property, you are inviting the general public onto your private property and it ceases to be as private as it was.
You can be indignant as you wish, make all the arguments that you wish, but this is how it has been for hundreds of years.
That is not true. It remains private property, even though some public regulations apply.
If opening a store to the public made it not private property, then well meaning rules like “no shirt, no shoes, no service” would have to be handled by local ordinance, which would be overly cumbersome.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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 ...