Discrimination and the Court (Part II)

If the government could not force affirmative action on otherwise innocent companies, it used coercive measures to make companies comply. One method was to force any government contractor to meet affirmative action policies. Another method allowed the government to set-aside funding (up to 10%) that was used to contract with minority dominated companies. SCOTUS found the latter method constitutional in Fullilove v. Klutznick. Of course, nothing in the Fullilove decision worried about how the program would affect the cost and quality of the work since there was less competition and the fact these types of government programs were generally open to more lobbying, corruption, waste, and fraud to win contracts.

To complicate matters, SCOTUS held in Johnson v. Santa Clara County, that reverse-discrimination affirmative action policies were acceptable to make up for past injustices. Santa Clara County was guilty of discrimination and therefore were allowed to promote less qualified females over more qualified males to make up for past indiscretions. The bottom line is that individuals, companies, organization, and federal agencies should be able to contract with anyone they feel will help them best achieve their goals so long as they do violate the contract and work rights of more qualified persons.

Discrimination laws have extended beyond Title VII. For instance, Congress passed the Age Discrimination Employment Act (ADEA) which protects workers between the ages of 40 to 70. But doesn’t ADEA discriminate against younger persons who may be more qualified to do the job? This may explain why the unemployment rate among younger persons is almost always higher than older persons. Age discrimination is treated by the courts and the government very similarly as race and gender discrimination. For instance, ADEA has a BFOQ exception which generally deals with safety concerns. For example, in many airline cases the Court has upheld a mandatory retirement age of 60 years old for pilots due to safety concerns. To be sure, many people may rather put their lives in the hand of an experienced 62-year-old pilot than one making their maiden voyage. But age discrimination is also very different from race and gender discrimination. No white person can become a black person and generally speaking very few males become females and vice versa. But every young person becomes an older person. Hence corporate age laws are developed by people that all face the same consequences. For this reason, age discrimination makes little sense. The bottom line, debating work contracts which consider color-blindness, gender-blindness, and age-blindness makes more sense than debating controversial and inflammatory age, race, and gender discrimination cases.