The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

Do Markets or Laws Work Best in Eliminating Employment Discrimination?

by David Doorey September 11, 2008
written by David Doorey September 11, 2008

My students will recognize this question, because it is a theme we deal with regularly in my courses.  If employers select workers not on the basis of their productivity, but on the basis of some irrelevant personal characteristic, like skin colour, should the state step in to regulate discriminatory hiring or leave it to market forces to correct the problem?
Classical economic theorists (and their neo-conservative political allies) often argue against employment discrimination legislation, and assert that ‘free markets’ will correct discriminatory practices in the long run (then again, as Keynes argued, “in the long run, we are all dead’!).  Here’s a brief explanation of why classical economists believe markets will correct discriminatory hiring practices (provided by Gary Becker):

An employer discriminates against … women, or other minority members when he refuses to hire them even though they are cheaper relative to their productivity than the persons he does hire. Discrimination in this way raises his costs and lowers his profits. This puts him at a competitive disadvantage relative to employers who maximize their profits, and hire only on the basis of productivity per dollar of cost. Strongly discriminating employers, therefore, tend to lose out to other employers in competitive industries that have easy entry of new firm

In other words, discriminatory employers will (in the long run!) be less competitive and be forced to changed their ways or go out of business.  Richard Posner, one of the godfathers of neo-classical economics, argues in this posting that, while markets alone are unlikely to eliminate employment discrimination, laws targeting discriminatory hiring are also doomed to failure:

we have laws against so many forms of employment discrimination–discrimination on racial grounds, of course, but also on grounds of ethnicity, religion, sex, disability, and age. …  So do we need discrimination laws, or can competition be relied on to eliminate discrimination?
The answer I would give is that competition cannot be relied upon to eliminate discrimination… but that, even so, laws against discrimination may not be desirable on balance, at least from the standpoint of economic efficiency, as distinct from making a political or moral statement. They may also not be very effective.

Posner’s argues that, from an economic perspective, the cost of implementing anti-discrimination laws will usually be hirer to society than any resulting benefit.  And, from a legal perspective, he argues that the laws are not likely to be effective because racist/sexist employers have ways to avoid the law and a law requiring employers to hire specific classes of people will stigmatize those workers and create unproductive resentment among other (non-targeted workers).   What do you think about that argument?  Can anyone think of a response to Posner?

1 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
Compulsory Union Dues: Fact and Fiction
next post
Mandatory Drug Testing and the TTC

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 337 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦Follow

Law Prof. Talking #labor & #employment #law #Gig to the masses. Alpaca ❤️ @YorkUniversity @OsgoodeNews @LSELaw @LWPHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

David J. Doorey🇨🇦
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
17h

A Nationwide Bargaining Unit to Fight Starbucks Is a Moon Shot Worth Trying

My latest on ⁦@jacobin⁩. https://jacobin.com/2022/08/starbucks-service-unions-nlrb-law-centralized-bargaining/

Reply on Twitter 1556339370461786112Retweet on Twitter 15563393704617861122Like on Twitter 155633937046178611211Twitter 1556339370461786112
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
21h

Luck is part of it for sure. Right time right place. True of a lot of jobs not just academia.

But in my experience sitting on lots of academic hiring committees, people selected have superior CVs. 60 applicants, one position. Not all luck. It’s a very competitive job market.

David Webster@dwebsterhist

I've been hired for 2 tenure track jobs and been on multiple committees, sent in more than 100 job applications, and done multiple interviews. Here is my thread 🛢
of job market advice for early career academics based on decades of experience:

1. Get lucky.

Reply on Twitter 1556285407817506817Retweet on Twitter 1556285407817506817Like on Twitter 15562854078175068171Twitter 1556285407817506817
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
6 Aug

Sunflowers!

Reply on Twitter 1556032894640037890Retweet on Twitter 1556032894640037890Like on Twitter 15560328946400378905Twitter 1556032894640037890
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.