It is well established that legislation tends to have unintended costs. As Bastiat might have put it, legislation is designed to fix the most visible and obvious problems, but it tends at the same time to exacerbate the unseen and less obvious problems. Therefore when designing laws to regulate human behaviour the question is not so much whether there will be unintended consequences, but whether the cost of those consequences will be outweighed by the hoped-for benefits of the legislation.
Many people regard it as immoral to consider the cost of beneficial things - if a goal is beneficial we should pursue that goal without regard to the cost, right`? That way we will know that we are good people. We will sleep well at night, untroubled by our consciences. By this reasoning moral people focus 100% on pursuing their moral ideals, while only immoral people worry about the costs.
The trouble with this view of morality is that it doesn't accord with reality and with human nature. Morality, properly understood, is not incompatible with life. If the pursuit of our moral ideals leads to destruction, it is probably a good idea to subject those ideals to closer scrutiny. Sometimes a moral ideal must be pursued even unto death, as the lives of martyrs illustrate. But day to day life is not predicated upon mass self-sacrifice. In most life situations we weigh the benefit against the costs and proceed only if the benefit outweighs the cost.
In his book Forbidden Grounds (great book - google it) Richard Epstein identifies some of the unintended consequences of anti-discrimination legislation. He invites readers to consider whether the costs imposed on society by such legislation are a worthwhile price to pay for the perceived benefits.
In the UK, problems arise from two aspects of the Equality Act 2010: first, that it links the right to equal treatment to those with specific identity-based characteristics (the ‘protected characteristics’) and second, that it sets up what Epstein calls an ‘incentive structure’ under which the most reliable and predictable way for an employer to avoid accusations of discrimination is to set up quota systems to hedge against the risk of exhibiting statistical disparities eg the risk that his firm might hire fewer black people than the proportion of black people in society generally. There is a risk that this statistical disparity might be taken as evidence of discrimination, so the obvious way to pre-empt the charge is to make sure that the numbers match up.
Such quotas are an unintended consequence of equality legislation because anti-discrimination law is not designed to introduce quotas for 'protected' groups - on the contrary, the law expressly prohibits running such quota systems. Discrimination in employment is unlawful, even if it is for the 'positive' reason of trying to favour protected groups. The principle of equality before the law lies at the heart of all legal systems based on the English common law (except California) and is, in theory, reflected in anti-discrimination law. This then is the perversity of the incentive structure of anti-discrimination legislation: it creates incentives to engage in precisely the types of conduct that are ostensibly prohibited by that very same law.
Thus the equality legislation creates a ‘systematic incentive’ to pursue the following ends:
These points will be considered in turn.
First, the reason why the degree of discrimination tends to be overstated is that this is often necessary in order to show that the law has indeed been broken. Nobody wants to complain about trivial matters or trivial breaches of the law, so there is an obvious incentive to overstate the problem. This is especially so where the test of discrimination is one of proportionality - the importance of the employer's aim will be weighed against the impact on the victim and so the more devastating the impact, the more likely that the employer's conduct will be held unlawful.
Dwelling at length on the idea of unconscious discrimination becomes necessary because discriminators always say 'I never!' when accused of being discriminatory. They will wheel out the 'best friends brigade' and defend themselves by pointing out that 'most of my best friends are <insert protected group>'. The reality is that because discrimination is a species of thought-crime it is impossible to prove if the accused person simply denies it. For the law to have any chance of being enforceable it becomes necessary for courts to accept proof of 'unconscious' discrimination - in this way, the protestations of the accused person become irrelevant. Indeed the protest is itself likely to be construed as proof of the unconscious discrimination. This is why, when people are forced to deny being discriminatory, they usually attempt at the same time to insert themselves into a protected group of their own, just to reinforce their defence: 'I cannot be racist, because as a woman, I am a victim of sexism'. Doesn't always work, but definitely worth a try because if you can show that you, too, are a victim of The Man, then you might be able to acquire a bit of useful social leverage. Luckily, this is not difficult. Everyone can define themselves as a victim of The Man if they think about their life circumstances carefully enough. We've all been there.
In order to prove what other people have 'unconsciously' done to exclude us or hurt us, we need Thought Police who are trained in scientific methods of probing people's subconscious to tell us what they were subliminally trying to do with their little micro aggressions, even though they were not conscious of it and would never knowingly do it. There is no escape! That's nice, because when people make laws to trap those they disagree with, it's nice if all the loopholes are safely plugged. That way, anybody at work who secretly hates us can be fired, even though they've done nothing to show their hatred and they don't even know that they hate us! The hatred is all unconscious! Don't worry, the Thought Police will soon smoke them out and make them pay.
Attributing discrimination to the marketplace is a further way of justifying any type of regulation, by arguing that unregulated markets are inherently discriminatory. That being the case, any type of legislation that controls the market is bound to be a good thing or at least better than 'doing nothing'. If you already subscribe to communistic ideologies, where you believe that the role of each member of Society is to sacrifice themselves for the 'greater good' of everyone else other than themselves, then anti-discrimination legislation will be your biggest weapon in dismantling free markets. There are literally no limits to the socialist goals you can achieve under the banner of 'equality'. You start by abolishing property rights (because property rights do not lead to equality) and from there the rest becomes easy.
Remedial programmes designed to achieve equality will always fall short of achieving perfectly equal outcomes, and therefore no matter how much is done, there will always be a need to do more. This is clear from calls to 'eradicate' racism and sexism. Since there is no known method of 'eradicating' human follies and foibles, clearly this is the project that will keep on giving. This is nice, if you work in the inequalities industry, because at least you know your job will never be made redundant. There will always be funds available to support equality programmes. What a comforting thought.
Related to that, remedial programmes are not evaluated by whether they work or whether they have proved to be successful.
Retraining programmes are justified not by their effectiveness but by pointing to racist and sexist incidents continuing to occur, so it follows that if the expensive diversity training does not work, the obvious solution is to pour more money into them and endlessly redesign them, make them more intrusive, and just generally keep signalling that you have the right intentions and are trying to do the right thing. As long as people continue writing racist and sexist stuff in the dark corners of the internet, the programmes will simply have to keep on running. Thus the inequalities industry will continue to grow.
And you, dear taxpayer, will continue working hard to pay for these programs because sadly, the inequalities industry is not staffed by volunteers - equality artists need to earn a living, put food on the table, go on holiday, etc, while they are occupied with fighting for social justice, and so you will need to pay for that.
Obviously you won't mind paying to fund these initiatives, because social justice is for everyone in Society, so we must all do our bit. But first, do the math.
Scholar, Writer, Friend