Forbidden Grounds: The Case Against Employment Discrimination Laws

549 Pages·1992·13.95 MB·English

by  Richard Epstein

THE CASE
AGAINST EMPLOYMENT
LAWS
DISCRIMINATION
RKHARD
A. EPSTEIN
Forbidden Grounds

Forbidden Grounds
The Case Against Employment
Discrimination Laws
Richard A. Epstein
Harvard University Press
Cambridge, Massachusetts
London, England 1992
Copyright © 1992 by the President and Fellows of Harvard College
All rights reserved
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
This book is printed on acid-free paper, and its binding materials
have been chosen for strength and durability.
Library of Congress Cataloging-in-?ublication Data
Epstein, Richard Allen, 1943-
Forbidden grounds: the case against employment discrimination
laws / Richard A. Epstein,
p. cm.
Includes index.
ISBN 0-674-30808-5
1. Discrimination in employment—Law and legislation—United
States. I. Title.
KF3464.E64 1992
344.73’01133—dc20
[347.3041133]
91-25250
CIP
To Eileen
For Everything

Contents
Preface xi
Introduction: Consensus and Its Perils 1
I. Analytical Foundations 13
1 Human Nature, Social Theory, and the Common Law 15
Controlling Coercion 15
The Determination of Ownership 20
Freedom of Contract and the Antidiscrimination
Laws 24
2 Force, Discrimination, and Free Entry 28
Victims of Force and Victims of Discrimination 29
To the Urn 31
Natural Limits on Discrimination 41
Some Empirical Evidence 47
3 Rational Discrimination in Competitive Markets 59
Relational Contracts and Governance Costs 60
Expanding Employment Opportunities 72
Is Title VII Efficient? 76
4 When Entry Is Restricted: The Case of Monopoly 79
From Many to One 79
Monopoly and Price Discrimination 80
Employment Situations 86
Contents
II. History 89
5 Race and the Police Power: 1890 to 1937 91
A Morality Play 91
Who Governs? 94
The Police Power 98
Unconstitutional Conditions 108
Constitutional Counterattack and Retreat 112
6 From the 1937 Revolution to the 1964 Civil Rights Act 116
The Changing Regulatory Environment from Carotene
Products to Brown 116
Post-New Deal Protection of Employment
Discrimination 118
Public Accommodation and the Barriers to Entry 126
1 Constitutional Challenges to the 1964 Civil Rights Act 130
The Civil War Amendments 130
The Commerce Power 135
Unconstitutional Interference 141
III. Race Discrimination 145
8 The Contract at Will 147
Revealed Preferences in the Marketplace 147
Functional Advantages of the Contract at Will 152
Arguments against the Contract at Will 156
9 Disparate Treatment 159
Title VII: A “Moderate” Interference with the
Market 159
Two Conceptions of Merit 163
The Problems of Disparate Treatment 167
Disparate Treatment as a Practical Compromise 181
10 From Disparate Treatment to Disparate Impact 182
A Critical Transition 182
Statutory Construction of the 1964 Statute 184
Legislative History 186
Contents ix
Griggs v. Duke Power 192
The Equal Opportunity Employment Act of 1972 201
11 Disparate Impact 205
Dismantling the House of Cards 206
The Business Necessity Defense 212
Type I and Type II Errors 222
Beyond Griggs 225
Testing after Griggs 236
12 The Effects of Title VII 242
Title VII as Deregulation 244
Relative Wage Levels 254
Redistributive Effects of the Antidiscrimination
Laws 259
IV. Sex Discrimination 267
13 Separate but Equal 269
Race and Sex Discrimination: A Misleading Parallel 269
Responding to Sex Differences in Practice 274
Sex Differences and Title VII 278
14 Bona Fide Occupational Qualifications 283
Statutory Framework 283
Legitimate Cost Differentials 290
Customer Preferences and Forgone Benefits 299
Safety Concerns as a Justification for Disparate
Treatment 309
15 Pensions 313
What Counts as Discrimination? 313
The Basic Economics of Sex-Linked Annuities 318
16 Pregnancy 329
Constitutional and Historical Preliminaries 330
Title VII Analysis 340
17 Sexual Harassment 350
A Tort in Disguise? 350