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Regulators: The New Socialists

Kafkaesque Employment Laws Have Created a Workplace Crisis

FEBRUARY 01, 1998 by RALPH R. REILAND

Ralph Reiland, a scholar associated with the Commonwealth Foundation in Harrisburg, Pa., is an associate professor of economics at Robert Morris College and owner of Amel’s Restaurant in Pittsburgh.

Socialism in the traditional sense—government ownership of the means of production and state control of jobs and incomes—is dead. From Leningrad to Managua, those who thought they had all the answers simply couldn’t deliver the goods.

Still, here at home, while the United States was off winning the battles for free enterprise and limited government around the globe, an expansive, litigious, and belligerent form of neosocialism surreptitiously gained a foothold right under our collective noses.

In ways that Lenin would envy, vague and fluid laws paired with jackpot penalties for petty misdeeds have empowered government to tell us what to do and how to do it.

Yesterday’s workplace disputes, significant or trivial, have become today’s federal cases. In The Excuse Factory, Walter Olson shows how Kafkaesque employment laws have produced a workplace crisis that has destroyed businesses and jobs, cut efficiency, and inhibited personal freedom.

In San Francisco, for example, to obtain the proper mix of fire persons, recruits are no longer required to carry a 150-pound sack up a flight of stairs. Instead, a 40-pound sack is pulled across a smooth floor. While that’s certain to please the gender-balancers at the Equal Employment Opportunity Commission, it’s unlikely to turn out well for a 150-pounder, male or female, who’s hanging from a flaming third-floor window.

Inane Rules vs. Common Sense

With nearly every decision a potential lawsuit, the management of working relationships in America has become a giant game of constant jeopardy, a legal straightjacket where inane rules replace common sense. For me, as a restaurateur, I balk at the extent to which the government has added the duties of speech monitor to my job. A failure to watch and correctly interpret workplace conversations, inspect cartoons that roll off the photocopier, or censor jokes can easily result in a lawsuit for permitting disparate treatment or animosity between workers of different genders, races, abilities, religions, or ages.

With narcolepsy (the tendency to fall asleep at inappropriate times) now a protected disability, I can become a target under the Americans with Disabilities Act if I wake up a sleeping waiter. To accommodate a government employee with narcolepsy, a federal judge ruled that bosses should “tolerate an occasional nap.”

I’m also on thin legal ice if I do or don’t crack down on a cook who’s packing a Beretta-92. A federal court ruled that a company could be sued for wrongful discharge for failing to accommodate the “chemical imbalance” of a dismissed employee who was bringing a loaded gun to work and stealing money from his coworkers.

In Texas, a court ruled that the spouse of an employee carrying on an adulterous affair could sue the company for letting it happen. So now, in addition to keeping the beer cold, I’m in charge of observing and obstructing illicit attractions. If I don’t perform the task with prudence, I might land in court for defamation and invasion of privacy.

I can also be sued for giving a negative job reference (defamation) and for giving a positive reference (“failure to warn” if an ex-waiter commits an atrocity at his new workplace).

Courts in California have ruled that it’s an invasion of privacy for employers to have job applicants take tests that gauge their psychological stability, yet the employer is also held accountable if an employee snaps and is too harsh with customers or coworkers. In addition, business owners have been sued both for allowing nepotism (unfair to minorities who aren’t in the family) and for prohibiting it (unfair to married couples.)

Miller Brewing Company, fearing harassment charges in today’s litigious climate, fired Jerold Mackenzie after he offended a female coworker by describing a “Seinfeld” episode. Last summer a jury ordered Miller Brewing and a company vice president to pay Mackenzie almost $25 million for wrongful discharge. The judge later reduced the damages the vice president has to pay and said the woman who complained would not have to pay punitive damages for the firing.

Socialism by Other Means

“No one talks about nationalizing industries any more,” says media baron Rupert Murdoch, “because the extraordinary growth of regulation has given effective control of them to the government without its having to assume the hassle of ownership.” Trial lawyers play the supporting role of “private vigilantes,” Murdoch asserts, “enforcing the neosocialist writ”—and extending the scope of regulations through the proliferation of litigation.

What’s next? Olson points to an article in the Harvard Law Review that targets the legality of “face-to-face” hiring interviews that permit “illegitimate appearance evaluations.” The author recommends that all job interviews be held behind screens.

According to another article in the journal, which questions “the legitimacy of allowing private employers to distribute jobs or income in accord with either current or potential productivity,” I’m in clear violation of the Ivy League egalitarian vision because I pay more money to my best chef. Does anyone at Harvard know why it was nearly impossible to get a good meal at any Moscow eatery in the days of communism?

At the EEOC there’s now this peculiar conclusion: “Absent discrimination, one would expect a nearly random distribution of women and minorities in all jobs.” The Harlem Globetrotters, 50 percent female and 5 percent Asian? Manicurists, 50 percent male? Male decorators, 95 percent heterosexual? It’s currently a federal crime for the owner of an Ethiopian restaurant, in order to enhance the milieu in the dining room (and to improve the waiters’ knowledge of the cuisine), to hire an all-Ethiopian wait staff. In Chicago, after an eight-year legal battle and nearly $200,000 in legal bills, Korean-American entrepreneur Andrew Hwang threw in the towel in his janitorial service business. Hwang, out of step with the latest definition of diversity, was charged with hiring too many Koreans.

It’s a safe bet that the vast majority of Americans would agree that America’s regulators, barristers, lawmakers, and bureaucrats produce more grief and misery on any given day than all the office jokes that were ever told. Why do we put up with this? Perhaps it’s time to give the overseers a dose of their own medicine: a class-action lawsuit, filed by millions of Americans, the next time they gang up and try to torment someone like Andrew Hwang. The charge? No different from what they’re so quick to levy on the rest of us—intentional infliction of emotional distress, workplace harassment, and the creation of a hostile environment. Plus colossal extortion.

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February 1998

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