SADOW: ‘Unintentional Discrimination?’ Really?

So now Louisiana Democrats bank upon the Orwellian idea of “unintentional” discrimination, displaying the absolute intellectual poverty behind such a notion. But failure to understand this may lead Republicans into a trap of their own making.

Not many jurisdictions in the country have fallen for the fiction that women face institutionalized and widespread discrimination in pay to explain raw differentials that show men receive more compensation than women. Proper analysis including all intervening variables show a number of factors explain the difference, and when accounted for makes any differential if not zero or actually favoring women in certain instances otherwise trivial: differences in occupation choices, hours worked, educational attainment, taken time off, reliability, and seniority between sexes all condition the relationship, most if not all ignored inappropriately by advocates of increasing the use of government to interfere in pay decisions in trying to justify their views.

The left has deduced that emphasizing this is not a winning strategy, and so has coined a new term to describe the difference where it exists that tries to emphasize that there is no organized effort to reduce women on pay questions to the equivalent of forced to be barefoot and pregnant: “unintentional” discrimination. It appears to mean that where differences occur, they are not meant by employers but somehow magically appear through system irregularities and inefficiencies, and therefore government must devise mechanisms by which to cancel these, et voilà, the evidence witnessed by the pay gapof the phenomenon of “unintentional discrimination” disappears.

Which is ridiculous, not the least reason being this whole concept itself is absurd on two levels. First, discrimination permitted by government is not automatically some kind of violation of equality. For example, it discriminates by allowing progressive income taxation: those who make more pay a greater proportion of their income, only because they earn more money and policy-makers feel their ability to pay is greater, nothing more. Along the same lines, it taxes at a higher rate those who engage in certain activities as opposed to others who win tax breaks, even if their incomes are the same. “Discrimination” only occurs in a legal and/or harmful sense when there is not some kind of justification (and the judiciary has set out a sliding scale of when it is permitted, depending upon the importance of the government objective involved) thought appropriate by society (constitutionally or legally) to allow it not to be sanctioned. Discrimination is rampant in society, but public policy strives to allow and endorse it only where it seems, in the eyes of the public and the policy-makers they put in office directly and indirectly, worth it to society as a whole and comports to our definition of equality.

Second, by definition “discrimination” only can be intentional. Why some objects alike in all important ways except one are treated differently occurs for some understood reason, even if it appears without rationality. For example, I discriminate between chocolate and vanilla flavors with ice cream, choosing the former and shunning the latter. And I intend that with full cognizance, because I think chocolate tastes much better. It’s not some unconsciously-derived preference out of the ethos where I have no idea why I act to consume chocolate ice cream at the expense of vanilla. By definition, to discriminate requires an intent that ends up in making a behavioral choice, regardless of the rationality of the reason that serves as the cognitive anchor by which it is made.

Thus properly understood, to argue for a concept of “unintentional discrimination” really means discrimination occurs because of conscious decisions made that shaped the evolution of the system allegedly to cause an improper discrimination unrealized by its purveyors. More specifically, the argument here is that the system that ties compensation to the work done conditioned by the value it is afforded by the market is somehow flawed, because of certain attitudes conducive to unjust discrimination allowed to mold this system that we unwittingly continue to buy into.

And this points back to a reprehensible concept that first gained prominence in the 1970s called “comparable worth.” This idea claims, taking a cue from the Marxian labor theory of value, that particular jobs can be valued by the “work” expended, dependent upon and calculated by the attributes necessary to perform it. For example, asocial worker should make more money than a plumber, because the former must get a college degree and whose work deals with protecting people, while the latter doesn’t need even a high school diploma and “just” bangs around pipes, yet the median plumber income is around $8,000 more a year more than that of a social worker.

Oh, and by the way, most plumbers are men and most social workers are women. And, according to the ideology of comparable worth, this is what explains the difference in incomes: the social worker occupation deliberately has a lower median because of latent discrimination against women that cancels out that these practitioners should get higher pay because the job is “worth” more. To rectify, comparable worth acolytes say that government should set pay scales according to this “intrinsic” value, or at the very least facilitate efforts by “victims” to “rectify” the imbalance through legal and other action.

That latter approach the “unintentional discrimination” advocates have taken with several bills introduced into the Legislature this session, and all deservedly have failed or look quite likely to do so, precisely because the concept of comparable worth ignores that it is the market, not some illusory “worth” of a job, that determines compensation. The market rewards efforts in proportion to the value they return to society, regardless of the presumed effort or mechanics involved in performing the job. Sorry, but that means to society as a whole plumbers of whom most are male return more value than social workers of whom most are female, assuming government does not interfere in the pricing mechanism. It does to some degree through dizzying amounts of regulation, but not in a way relevant to the issue at hand: that sexism pervades to the point it causes deliberate underpricing of women’s contributions. Not only so as there is a whole raft of laws out there that keep a lid on this practice but also that, as noted above, simply no empirical evidence appropriately analyzed supports this conjecture.

In short, proponents of the concept of “unintentional discrimination” blame the market for this, as a social construct biased to favor men over women. That’s uninformed and inerudite, as seems largely recognized at some basic level – except for advocates of HB 956 by state Rep. Julie Stokes. This bill, which perhaps its supporters see as a device to take the wind out of the sails of the unintentional discrimination crowd, makes illegal paying wages to an employee of one sex at a different rate to that of another “for equal work on jobs in which their performance requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” This wording mirrors the federal Equal Pay Act, but then falls short because it does not include four exceptions that follow, the last of which is most crucial: “except where such payment is made pursuant to … a differential based on any other factor other than sex.”

Note that a comparable worth argument can be made without inclusion of the last phrase. It could be claimed, for example, that the “performance” issue spans different jobs and social work requires more “skill” and “effort” than that of plumbers. The wording is such that it appears to apply to comparisons within a single employer, but there are employers out there that may have a multitude of jobs that are predominantly male or female and which have wage differentials. By adding the last clause, this permits introduction of other trenchant factors, such as the market, into countering comparable worth explanations that would argue for wage discrimination – and explains why comparable worth supporters have wanted to amend out that phrase in the federal statute.

Granted, HB 956’s authors and their allies inside and outside of the legislature probably did not conceptualize the use of this law across different jobs, but these tactics have been used by the comparable worth movement to try to sneak its ideology into implementation of public policy. Courts have been historically reluctant to expand coverage of the federal Fair Labor and Standards Act in this direction, but that could change, especially without the clause. And if one finds the concept noxious, why give it an opening?

Additionally, if one enjoys legislative parsimony, what is the necessity of a state law that largely duplicates federal law and would come even closer to it if amended in a way that appears to adhere more faithfully to its supporters’ ideas? The federal law that applies to Louisiana employees is working as intended, so there’s no practical reason to pursue a needless add-on in the form of HB 956, and a political rationale of defusing the issue introduces too much risk in addressing something that, frankly, has little salience in the overall political debate.

At the very least, the bill, currently having passed the House, needs amending to fit its federal equivalent 29 U.S.C. 206(d). Much better would be abandoning it entirely. If neither are done, presumably many of those behind it one day may find a nasty jurisprudential surprise.

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