Thursday, January 31, 2008

Two Distinctively Different View on Pending Civil Rights Bills

Bill The guy on the left looks innocent enough, but does he pack a punch that one only realizes once he becomes a "Law"?

Since blogging about the ADA Restoration Act hearing before the House, I have seen two very different views on whether passing different civil rights legislation would be a good idea.

First, pro from a New York Times editorial yesterday regarding the Senate version of the Ledbetter Pay Discrimination bill and the Civil Rights Act of 2008:

Senator Edward Kennedy, Democrat of Massachusetts, has introduced a pair of bills designed to undo the damage done by the court’s badly reasoned decisions. Congress should pass both without delay . . . .

The Fair Pay Restoration Act, one of Senator Kennedy’s bills, would undo the injustice of the Ledbetter decision by establishing that the 180-day deadline runs from when a worker receives the unequal pay, not when the employer decided to discriminate. It would make clear that each discriminatory paycheck restarts the clock.

Mr. Kennedy’s other bill, the Civil Rights Act of 2008, would reverse more bad decisions. One of these is a 2001 ruling that says that people who are discriminated against in programs using federal funds can sue only for intentional discrimination, not for actions that have a discriminatory effect. This decision dramatically scaled back protections against discrimination of all kinds.

On the con side is our good friend, Michael Fox of Jottings of an Employer's Lawyer, who seems skeptical about the ADA Restoration Act and the Civil Rights Act of 2008:

Clearly the intent of the authors of those and similar bills is to help either employees in general or at least certain groups of employees. But good intentions don't always mean good results. That's the point of the article in the Freakonomics column in last week's NYT, Red-Cockaded Woodpecker - Endangered Species.

The employment law example was the Americans with Disabilities Act:

The economists Daron Acemoglu and Joshua Angrist once asked a similar question: How did the A.D.A. affect employment among the disabled?

Acemoglu and Angrist found that when the A.D.A. was enacted in 1992, it led to a sharp drop in the employment of disabled workers.

Clearly not what was intended. The reason -- "employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place. " For more you can check out their paper, Consequences of Employment Protection? the case of the Americans with Disabilities Act.

So I would be interested in hearing readers' views about, not whether these bills are likely to be enacted, but whether such legislation has a detrimental impact on those individuals the law is supposed to help.

PS

https://lawprofessors.typepad.com/laborprof_blog/2008/01/two-distinctive.html

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Comments

Reminds me of endless discussions along these lines with Chicago types when I was a student at Harvard in the the mid-90s (in fact it was the subject of my third-year paper). I would prefer plugging holes in the mandatory regime to pretending that the invisible hand will magically keep everything together. I know that there are some, maybe many, who feel that the Civil War and the New Deal (among other "adventures") were unnecessary. I simply don't agree.

Posted by: Michael Duff | Feb 1, 2008 8:45:44 AM

A couple of points about the ADA example: First, Acemoglu and Angrist's article, while a solid piece of work, very likely does not tell the whole story. As Rick Burkhauser and his colleagues have shown, the decline in employment for people with disabilities began well before the ADA was adopted, in part due to expansions in SSDI benefits. There's some good evidence that, after the first couple of years of implementation, the ADA had a *positive* effect on employment of people with disabilities. Second, to the extent that the problem A&A identify exists -- employers won't hire people with disabilities b/c they're afraid it's hard to fire them -- it could be solved by more vigorous enforcement of the ADA at the hiring stage. For some thoughts on these questions, see this paper.

Posted by: Sam Bagenstos | Feb 4, 2008 2:31:46 PM

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