Something Absurd in Anti-Discrimination Laws

There is something absurd in anti-discrimination laws. One illustration can be found in a recent Wall Street Journal report on corporations sued by conservative activists for discriminating in the name of non-discrimination (“The Legal Assault on Corporate Diversity Efforts Has Begun,” Wall Street Journal, August 8, 2023):

The Wisconsin Institute for Law and Liberty, in suing Comcast in April 2022, cited the 1866 Civil Rights Act. One provision often referred to as Section 1981 says all Americans should have the same rights to sue and enforce contracts “as is enjoyed by white citizens.” …

Title VII of the Civil Rights Act of 1964 bans workplace discrimination. The recent [Supreme Court] affirmative-action decision didn’t address employment practices directly. But Supreme Court Justice Neil Gorsuch in a concurring opinion noted “materially identical language” on discrimination in the laws governing higher education and employment. …

The pressure leaves employers vulnerable to litigation for either going too far or not far enough in addressing barriers to equity and inclusion, lawyers say.

Consider the broad lines of the history of discrimination in America. Before the Civil War, some states mandated racial discrimination either legally or by letting mobs impose it. After the Civil War, racial discrimination was forbidden, even if the prohibition was not seriously enforced until the Civil Rights Act of 1964. This law came to be interpreted as mandating discrimination in the name of non-discrimination, an enterprise called “affirmative action.” Now, some people want to forbid discrimination again.

(Note how the word “liberty” seems to be used against liberty in the name of the Wisconsin Institute for Law and Liberty, except if they refer to “collective liberty” instead of individual liberty.)

Here is a revolutionary idea: Why not let individuals and their voluntary associations (including private corporate bodies) be free to discriminate or not? At least if some actions or attitudes are bigoted (with the cost of discrimination largely supported by the bigots), the outcomes will remain diversified at the level of private choices. What should be forbidden, of course, is for governments and government institutions to discriminate.