Three Surprising Banned Words and Other Misadventures in the World of Antidiscrimination Law

by Roger G. Waite

TCS News Contributor


Imagine this scene for a moment: you’re a blue-collar worker on the job. You make a few snide observations to a co-worker about a customer as he walks in—unprofessional, perhaps, but not uncommon. The customer overhears; he demands you apologize. You refuse. He leaves in a huff. A few days later you get a summons from a government agency you’ve never heard of. Your boss got one, too; he fires you. You can’t afford a lawyer and don’t know how to defend yourself.  You’re eventually found guilty of harassment and ordered to pay up—a fine, damages, and the customer’s legal expenses.


Now, where do you think you are? A story by Gogol or Kafka? Stalin’s Russia, or maybe Putin’s? No, not close. Ok, you think, maybe I’m somewhere in England, or France, or somewhere, but I ended up on the wrong end of an E.U. bureaucrat who didn’t have any jam for his brioche that morning. No, still cold.


You’re in Chicago, right in the United States. The scenario I outlined is based on a case filed by three patrons against a security guard, his manager, and a McDonald’s franchisee before the city’s Commission on Human Relations in 2009. And some of the details are even worse. While the commission also found that the guard and franchisee committed sexual orientation-based harassment for remarks of the former that included an anti-gay slur, the franchisee was held liable for gender identity harassment based solely on the guard’s saying “That’s a man.” The person to whom he was referring was, in fact, biologically male.  Moreover the comment was a mere aside to the manager that was overheard. In the end, the guard and franchisee were held liable for $20,196.50 in compensatory and punitive damages, fines, and costs. (By the way, at the time, the commission had no statutory authority to impose punitive damages and a state appellate court has since found this long-standing practice illegal.)


Surprisingly, many on the left have been hyperventilating about the possibility of state and local anti-discrimination laws’ becoming too weak. For example, earlier this year Daily Beast columnist Jamelle Bouie denounced a Kansas bill that would have created some religious exemptions to the state’s anti-discrimination laws as “a close cousin—if not sibling—of Jim Crow.” If enacted, he worried, it would be pervasively invoked to deny service to gays and lead to state-condoned violence against them. Never mind that Kansas, like 29 other states, has never banned discrimination based on sexual orientation. Needless to say, Bouie’s dark prophecy of anti-gay pogroms has failed to materialize as the country rapidly becomes more accepting of gays.


When you move outside the more fevered precincts of the liberal imagination into the real world, it is clear the greater danger is not that anti-discrimination laws have exceptions and limits to respect religious liberty and free speech, for example, but that they get interpreted so broadly that they ride roughshod over core liberties. That threat may not be as dramatic as Bouie’s, but it’s very real and already causing concrete harm.


To understand how anti-discrimination law can get out of control, just look at Chicago. There, in addition to federal anti-discrimination laws, a business is subject to three bodies of anti-discrimination law that can be administered by four different agencies: human rights commissions at the municipal, county, and state levels, plus the state’s regular courts; each has its own precedents and rules of procedure. Even more confusingly, an accuser can simultaneously pursue the same claim in multiple venues. And the list of prohibitions is almost dizzying. Altogether they prohibit discrimination based on nineteen categories in at least some private-sector contexts—from race and religion to source of income and military discharge status.


If it stuck to enforcing the law as written, this regime might be somewhat sensible.  But the administrative state rarely gets a power that it can’t “improve” by creative interpretation.


The city has expanded the concept of harassment to the point that it can be used practically to outlaw speech that particular hearers find highly offensive.  In federal anti-discrimination law harassment generally requires an offending course of action. But, as the city now interprets it, public-accommodations harassment, for which an offender may be fined and forced to pay damages, can be a single instance of non-threatening, constitutionally protected speech—even when it is not directed to the person “harassed”—as long as it is sufficiently “separating and belittling.”


That interpretation justified the ruling in the McDonald’s case that I mentioned earlier—and it’s not the only one.  A business was found liable after an employee “demean[ed]” a customer for being a ticket broker—remember, source of income is a protected category. A cabbie was subjected to a hearing on a complaint of harassment for calling a passenger “old” and unable to work; a policeman for calling someone “crazy.”


Although all the relevant statutes only ban actual discrimination, all three commissions have adopted the controversial theory of disparate impact. Under the theory any policy or practice that adversely impacts one protected group more than another is presumptively illegal. One practice that Illinois describes as “suspect” for its disparate national-origin impact: English fluency as a job requirement. If a business wants to defend a challenged policy’s legality, the onus is on it to prove that it’s a “business necessity.”


Disparate impact massively expands the difficulty of complying with anti-discrimination measures. It’s fairly easy for a business to identify and stamp out intentional discrimination. But, with numerous protected categories, there are few business or housing practices that don’t arguably have a disparate impact in a least one of them. And sometimes you don’t even have to argue. In a 2011 case, the city found that a nightclub’s dress code illegally discriminated against blacks through its disparate impact even though no evidence was presented to support the claim. Laws that get interpreted this broadly and erratically aren’t just a headache for perplexed business owners and workers; they corrode the rule of law itself.


Even when they are not bursting through the bounds of their legal mandate, these human rights bureaucrats can be rather cavalier about fundamental rights. Freedom of the press is no match for Chicago’s P.C. police. The county’s human rights commission held it had the right to scrutinize and potentially sanction newspapers for how they chose their advertising content.


Property rights don’t fare much better. In one nightmarish case, a struggling condo association endured a costly investigation spread out over ten years after it evicted a condo owner who consistently failed to pay her assessments. The problem, in the city’s eyes? The condo residents were lesbians and the association president’s smattering of mildly anti-gay remarks was taken as evidence of “anti-gay animus.” Even though it concluded that they would have been evicted in the absence of any bias, the commission found the association liable for discrimination.


Despite the frivolity of some of the claims I’ve mentioned, invidious discrimination is no joke. America has a sorry history of horrifically destructive discrimination—not infrequently sponsored or ratified by the state. Surely the state has a role to play in limiting it today, especially when it becomes so corrosive it threatens the very stability of society. But that society is worth preserving, in part, because of its healthy respect for ideals like personal liberty, free association, and due process. When the government anti-discrimination apparatus aggrandizes itself to the point that it starts producing this kind of absurdity, it has lost a sense of what it is supposed to be protecting.

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