Yes, We Actually Need Anti-Discrimination Laws to Protect Employees of Color

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Yes, We Actually Need Anti-Discrimination Laws to Protect Employees of Color

Imani Gandy

If the free market was the antidote to discrimination, we wouldn't have needed the Civil Rights Act of 1964 in the first place.

Three of the country’s largest media outlets are facing lawsuits filed by employees of color who allege that they have been subjected to racial and other forms of discrimination. These cases have raised questions about Title VII’s prohibition on workplace discrimination and whether we would all be better off doing away with anti-discrimination measures and just letting the vaunted free market handle discrimination.

Jettisoning anti-discrimination laws is not a new concept. In 2010, Rand Paul, then a Republican Senate candidate, landed himself in hot water when he said in an MSNBC interview with Rachel Maddow that he believed in limited government and that limited government should not force private business to adhere to civil rights laws. Paul quickly walked his statement back, but his belief is common among libertarians and conservatives.

It’s hard to see, however, how the free market would have prevented the sort of discrimination alleged in the lawsuits recently filed against CNN, the New York Times, and Fox News. 

The lawsuit against CNN alleges that “the company’s Atlanta headquarters is rife with racism.” That racism, the suit says, includes discriminatory patterns and practices: paying Black employees less than their white counterparts for the same job; promoting Black employees at a substantially lower rate; refusing to allow Black employees to reach the most senior positions and effectively creating a glass ceiling; and terminating Black employees at a much higher rate than white employees.

The allegations against the New York Times are similar. Plaintiffs in that lawsuit allege that in 2012, after the controversial hiring of CEO Mark Thompson—a man who once bit a BBC co-worker—the Times became an “environment rife with discrimination based on age, race, and gender.” Older, Black and/or female employees faced barriers to equal opportunity advancement, were unlawfully denied promotions and compensation that younger white employees garnered, and were also terminated at a higher rate than younger white employees, the plaintiffs say.

“Unbeknownst to the world at large, not only does the Times have an ideal customer (young, white, wealthy), but also an ideal staffer (young, white, unencumbered with family) to draw that purported ideal customer,” the complaint alleges.

And over at Fox News, a group of current and former employees filed three separate lawsuits against the organization alleging that the racial discrimination the news organization inflicted on several Black employees was “more akin to Plantation-style management than a modern-day work environment.”

The allegations primarily concern Fox’s comptroller, Judith Slater, who routinely lobbed despicably racist insults at several Fox employees. According to one of the suits, Slater mocked the way they spoke, disparaged Black men as “women-beaters,” and even demanded that two Black women employees arm-wrestle each other and their white female supervisors for her amusement, “similar to the way slave masters demanded that Black slaves fight each other for their own amusement and entertainment.” She also mocked a Bangladeshi former employee about his accent so relentlessly that she drove him to tears; she called her daily commuting train the “Bombay Express” due to the number of Indian people living in New Jersey; and referred to “cheap Mexicans.”

That same complaint also alleges that Kelly Wright, long-time host of Fox and Friends, was “effectively sidelined” and that ousted personality Bill O’Reilly refused to allow Wright to run a series called “Beyond the Dream” because it showed Black people in “too positive” a light.

The three news organizations are fighting the lawsuits, of course, but the allegations reflect a serious culture of discrimination among major media organizations. This culture of discrimination is widespread in corporate America in general. Certainly, most Black people who work in primarily white corporate environments could tell you similar stories about the racial micro- and macroagressions they suffer on a daily basis.

But rather than using the opportunity to have a fuller discussion of discrimination and equality in the workplace—or even better, to talk about representation in media—one conservative commentator, Selwyn Duke at the New American, took the news as a reason to call for obliterating Title VII of the Civil Rights Act of 1964 entirely.

In a piece called “Liberal Hate? Times, CNN, and Fox News Sued for Racial Discrimination,” Duke argues that freedom of association is under siege and that anti-discrimination laws and regulations are to blame. We would be better off ending “tyrannical government intrusion” and letting the market decide.

Setting aside the sheer absurdity of categorizing Fox News as liberal—as Duke does in the headline for his piece, or even moderate as he does in the body of his piece—Duke’s claim that freedom of association would eliminate expensive lawsuits alleging discrimination is foolish.

“It’s not hard to argue for and is American as apple pie,” Duke proclaims in support of his thesis that freedom of association has been ignored in favor of government regulations that ban discrimination.

“Consider: We would agree that you can include in, or exclude from, your home whomever you wish for any reason you please, whether it because he’s male, black, white, thin, boring, a coffee drinker, or simply because you don’t like his face,” Duke writes. “Why should you lose that right merely because you decide to erect a retail façade and sell food, cakes, flowers, or photographic or wedding-planning services?”

The answer to that question is the Commerce Clause. During the height of segregation and Jim Crow, the Supreme Court decided in a landmark case called Heart of Atlanta Motel, Inc. v. United States that the power of Congress over interstate commerce extended to intrastate activities that affect interstate commerce. Such intrastate activities included racial discrimination by motels serving travelers. The Court held that the unavailability of adequate accommodations significantly interfered with interstate travel, and that the Commerce Clause granted Congress the power to ameliorate the existing exclusionary practices in hotel and motel accommodations in order to alleviate the burdens that discrimination by race or color place upon interstate commerce.

Duke argues that it’s “tyrannical and a sort of economic blackmail” … “to say that, somehow, you lose your rights [to freedom of association] because you want to use it to engage in commerce.”

But the law has set forth rules for people who want to engage in commerce. And one of those rules is you can’t discriminate against people—either those who work for you or those who use your services.

Duke also argues that the private sector—meaning, market and social pressure—will remedy private sector discrimination, citing the desegregation of baseball as an example. According to Duke, racial integration in baseball occurred in the 1940s “completely absent government coercion.” But desegregation in baseball doesn’t say much about the need for anti-discrimination regulations in today’s workplaces. And I would bet everything I own that even after baseball was integrated, Black baseball players were still on the receiving end of some deplorable racial slurs.

Besides, if we could rely on the free market to end discrimination, we wouldn’t have needed the Civil Rights Act in the first place.

The truth of the matter is that the free market—which is based on the idea that rational actors will act in their own best economic interest—ignores that racism is inherently irrational and causes otherwise rational people to act irrationally. Whiteness is, in a sense, its own currency. White people are afforded benefits and privileges that people of color are not. Yet poor white people often ally themselves with rich white people because they get an emotional and cultural payoff by rejecting solidarity with poor people of color. “I may be poor,” they might think, “but at least I’m not Black.”  

Anti-Blackness and white supremacy impel people to act and vote against their interests. That’s how Trump got elected.

The sort of discrimination alleged in the complaints filed against CNN, the New York Times, and Fox News wouldn’t be ameliorated by the free market. If these employees had no Title VII recourse, they’d simply have to toil away in hostile work environments, the way they would have before the Civil Rights Act. They’d have to arm-wrestle their white supervisors or have white supervisors mocking and taunting them. And they’d have to grin and bear it.

That’s not a policy that should be tolerated.