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My last diary was about how everyone seems to run as fast as they can to invoke the Ku Klux Klan as a stand-in for the gay community, in any attempt to understand by analogy why anyone, specifically "Christians," can't or shouldn't be forgiven for their refusal to serve, do business with, or employ gay people.

The tactic is, essentially, to find the most deplorable category of people imaginable -- in this case a violent, racist hate group that practically no one outside itself actually likes, supports or identifies with -- to elicit from one's counterpart a concession that anyone should and would be forgiven for refusing to serve, do business with, or employ such people, and ask, "What's the difference?" in order to imply that there is none. The next step is for one to try to articulate the difference, on both sides of the equation (the discriminator and the victim), while the other tries as hard as he can to be dissatisfied with and unpersuaded by those distinctions, insist upon the similarities instead, and most importantly, figure out a way to make himself a victim-by-proxy to any answer.

Now, these issues are complicated, and sometimes there really is no good, solid, satisfactory answer as to why one category of people is or should be a statutorily- or judicially-defined "protected class" and another is not or should not be.  At the end of the day, in any hypothetical discrimination scenario, either one party has to do something he doesn't want to do or risk legal consequences, or the other party has to accept and tolerate being treated unfairly on account of something about himself that he can't, doesn't want to, or feels he shouldn't have to, change.

Discussions about discrimination, and whether this or that class should be protected from it, inevitably become an endless and often fruitless search for objective organizing principles to distinguish and categorize groups that should be and are protected from discrimination by law from those that shouldn't be and aren't. Even the distinctions we agree on are not always satisfactory. If immutable human characteristics such as race, gender and national origin can't be a reasonable basis for discriminatory treatment, why not other immutable human characteristics like eye color, height, left/right handedness, &c.? If immutable human characteristics like race, gender and national origin are protected, why is religion protected when it's not an immutable human characteristic? If your religion puts you in a protected class, why does your political affiliation or ideology not put you in a protected class? If Republicans, Democrats, liberals and conservatives should be protected classes, why not vegetarians, Yankees fans, Star Trekkies, and people who like Ben & Jerry's better than Haagen Dazs?

These are good questions and often lead to lively discussions and thoughtful, good-faith efforts to find objective distinguishing principles. I'm not here today to attempt to answer them; I'll leave that to the comment thread. But the paragraph above is illustrative of a problem that often arises when discussing discrimination and anti-discrimination laws. What we often end up doing in proposing counter-example after counter-example, and endeavouring to find distinctions between categories of people and types of categories of people, is completely lose sight of what discrimination actually is, and how anti-discrimination laws actually work in terms of legislation, enforcement and jurisprudence.

On another blog I recently had a lengthy back-and-forth on this topic that went off in several different directions, but one thing about the conversation struck me. At some point I was asked whether I thought that one's "political beliefs" should be a shield against discrimination just as one's "religious beliefs" are (actually, they're not, but more on that shortly), or just as one's race or gender is, to which I replied, "No." I was therefore accused of saying that discrimination on the basis of one's political beliefs, quote, "should be legal." Meaning, employers and merchants should be free to discriminate against, mistreat, and inflict economic harm upon Klansmen, social democrats, crypto-anarchists, eco-capitalists, and people who believe that the Earned Income Tax Credit threshold or a single person with one qualifying child should be $39,200, without consequence or fear of consequence.

Which, of course, is absurd.  Saying that [X] should not be a protected class, or [Y] should not be a factor that puts a person in a protected class, is not to say that "discrimination against [X] should be legal" or "discrimination on the basis of [Y] should be legal." Discrimination doesn't work that way, and anti-discrimination measures don't work that way.

There are essentially two kinds of discrimination that are relevant to this discussion: employment discrimination and commercial discrimination. For the purposes of brevity and clarity, let's define and understand "employment discrimination" to mean an employer's firing of, or refusal to hire, a member of a protected class for no reason other than his/her membership in that class.  Let's define and understand "commercial discrimination" to mean a merchant's refusal to serve (viz., sell retail goods and services) to a member of a protected class for no reason other than the customer's membership in that class. The latter has obviously been in the news a lot lately, and for that reason will be the focus of this article.

Accordingly, a word about "religious beliefs" vis-à-vis discrimination and protected classes. Title VII of the Civil Rights Act and other anti-discrimination statutes and jurisprudence make "religion" a protected class alongside "race," "gender," "national origin," and in some states, "sexual orientation." That's "religion," not "religious beliefs." The difference is that the former, while not an inherent and immutable human characteristic like race or gender, is a status, an holistic self-identification, whereas the latter refers to specific, discrete, subjective thoughts that a person might have or claim to have at any given moment. For the purposes of anti-discrimination laws, an employer or merchant risks a discrimination lawsuit if he mistreats a Jew solely because he is Jewish, a Catholic solely because she is Catholic, or a Pastafarian solely because he is Pastafarian. Specific individual religious "beliefs," i.e. thoughts qua thoughts, are not "protected" in that fashion.

To over-simplify a bit, you could be successfully sued if you fire someone for being Jewish, but you likely couldn't be successfully sued if you fire someone for believing that people should not eat bacon. [Notice I didn't say "you can't fire someone" and "you can fire someone," respectively.] You could be successfully sued if you refuse to serve a Muslim because he's a Muslim, but you likely couldn't be successfully sued if you refuse to serve someone because he believes that women are inferior to men. Granted, in either case the line is a fine one, because the plaintiff could make the case that it's his religion and not the specific discrete "belief" that motivated the defendant to treat him unfairly. But that's the point; the plaintiff would have to make that case. The point is that it's the plaintiff's religion, his identification as being of a particular named faith or sect, not any particular discrete "belief" (or set of "beliefs") that puts him in a protected class and defines that class.  

The reason this comes up, obviously, is that we keep hearing that a merchant's "sincerely-held religious beliefs" should (or should not) justify his mistreatment of, and infliction of economic harm upon, a gay customer. So, if "sincerely-held religious beliefs" are (or should be) "protected," why not "sincerely-held political beliefs?" The problem is that this question takes a leap forward from a place that doesn't exist. In the commercial discrimination scenario, the issue is whether the customer is a member of a protected class, not the merchant. Being a member of a protected class constitutes a shield against discrimination; the merchant in that scenario is using his "sincerely-held religious beliefs" as a sword to justify the unequal, unfair treatment of the customer. "Sincerely-held religious beliefs" are not a shield against discrimination; if they're a shield at all, they're a shield against accountability, against the legal consequences of discriminating against others.

Which brings us back to the nonsensical claim that where it is argued that [X] should not be a protected class, that means "discrimination against [X] should be legal." For starters, as most people understand, discrimination is not a crime. No one goes to jail for refusing to serve a customer, and a customer to whom service is refused cannot call the police to come and force the merchant to serve him. Discrimination is a private cause of action that exists in the common law, and may also be created by statute, that gives an individual citizen the ability -- and the option -- to enforce his right to fair and equal treatment. In other words, laws against discrimination are privately enforced, not publicly enforced.

Anti-discrimination statutes, including the Civil Rights Act, don't "make discrimination illegal," per se. Discrimination is "legal" if it is reasonable; discrimination is illegal if it is unreasonable and inflicts economic harm on the victim. That's true whether we have anti-discrimination statutes, with enumerated "protected classes," or not. Anyone who is treated unfairly and unreasonably by an employer or merchant and suffers economic harm as a result is free to sue the employer or merchant on any number of common-law contract and tort theories. If he can prove that the treatment was wrongful and unreasonable, violated a legal duty, and caused him harm, he can recover damages, irrespective of what class or category he belongs to and whether the employer or merchant mistreated him because of it.

So, at least when it comes to legislation, anti-discrimination statutes don't "make discrimination illegal," nor does their existence (or absence) imply that discrimination on the basis of non-enumerated characteristics is, quote, "legal." What they do is make discrimination against members of protected classes presumptively unreasonable. Meaning, members of protected classes who are treated unfairly by employers or merchants are entitled to presume that the treatment was motivated by their status as a member of that protected class, and animus against that class is itself presumed to be unreasonable.

Now, of course, that does not end the inquiry. Being entitled to a presumption does not guarantee that one will win a lawsuit; employers and merchants who are sued for discrimination don't always lose, even where the plaintiff is a member of a protected class suing under an anti-discrimination statute. The employer or merchant can overcome the presumption by demonstrating that the treatment of the employee or customer was reasonable under the circumstances, and not motivated solely by irrational animus against the latter's class.

Conversely, the fact that the plaintiff is not a member of a protected class does not mean he cannot successfully sue for discrimination. The only difference is that here, the defendant bears no burden of demonstrating that his treatment of the plaintiff was reasonable under the circumstances; it is not presumed to have been unreasonable. The plaintiff must sue under the common law (tort or contract), not pursuant to any anti-discrimination statute that would give him that presumption. Like any other litigant he must demonstrate that the treatment was wrongful, unreasonable, and caused him economic harm. Which he may very well be able to do, even without the aforementioned presumption.

Hence, "discrimination" "against" this or that non-protected class of people is not "legal" simply because that class is not explicitly protected by statute. The practical difference is that it's harder for a plaintiff to win a discrimination lawsuit without the benefit of a statutory presumption. For example, a complaint for discrimination on the basis of some non-enumerated, non-protected characteristic might not survive a motion for summary judgment, where an identical complaint for discrimination based on a protected characteristic would survive such a motion.

Now, the question still remains as to why certain classes (and types of classes) and not others are entitled to that presumption and others are not, why some should be and others should not be. There are factors beyond any objective organizing principles that distinguish one class or type of class from another, such as a history of discrimination and a demonstrated need for special protection based on that history. It may be no more complicated than a basic societal realization that for some classes of people, private enforcement under the common law is not enough, so the legislature has to step in and fix it; it becomes society's problem, not just the individual victim's. In some cases, perhaps society is willing to tolerate discrimination against members of certain private clubs and organizations, whose very existence may itself be harmful to society. (I'll let the readers think of examples of what those might be.)

I guess my point is that it doesn't make sense to start asking which categories and characteristics of people should define and make up "protected classes" for the purposes of anti-discrimination laws, let alone start throwing out categories and characteristics at random and demanding they be included or distinguished, without first understanding what discrimination is and what anti-discrimination laws actually do. If the conversation starts with a question of whether "discrimination against" [X] should be "legal" or "illegal," it's starting from the wrong place. Asking the wrong question at the beginning seldom leads to the right answer in the end.

Originally posted to GrafZeppelin127 on Thu Mar 13, 2014 at 09:44 AM PDT.

Also republished by Community Spotlight.

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