When the government got into the business of regulating our choices through anti-discrimination law, it was attempting to regulate our thoughts. It first forbid certain kinds of choices when made “on grounds of” race, sex, religion, and national origin. That was expanded to disability, which includes “mental” disability. Nowadays, our whole society and economy are burden by the anti-discrimination police.
This was the inevitable result of a 30-year old legal trick. The Civil Rights Act of 1964 didn’t forbid any particular racial or sexual configuration in school or the workplace. An employer or admissions officer is free to choose, so long as he doesn’t choose for the wrong reason. Single-race or single-sex workplaces–freedom of association’s acid test–were still allowed. But, according to law, they could not be consciously created. You can hire only white males, but you cannot intend to hire only white males.
How can we prove intent? This is where the trouble begins. Every decision is made from a mixture of motivations. Not even the actor himself can fully know what went into a decision. Certainly the government cannot. But by forbidding certain kinds of discrimination, the government gives itself power to define what constitutes evidence for malintent.
Courts, it’s hardly surprising, took the easiest path. To prove discrimination, look for circumstantial evidence. They discover “disproportionate effects” and “disparate impact.” This translates to: you’re guilty because you have not hired enough women and minorities. To avoid that fate, you must adopt affirmative action, quotas, goals, timetables, and set asides: the spoils system now poisoning American life:
http://mises.org/freemarket_detail.aspx?control=244
