Don’t create protected classes

Don’t create protected classes

There is an old truism in the legal industry. It goes ‘hard cases make bad law’. Essentially this argument says thatby definition hard cases are the exception, not the rule. And making laws based on exceptions is a guaranteed method of screwing over everyone else.

This is on account of the fact that said law will always presume that all parties involved all fit certain profiles.(Generallythe profiles of jerks, with the exception of the chosen victim, because he or she lost and came crying to us. (So that somehow makes her less of a jerk instead of more of loser. Whatever happened to Malice in Dallas?) Not everyone you meet is a Harvey Weinstein wannabe, you know. Most of the time, problems are caused by miscommunication or misperceptions. Actual malice is pretty rare.)

This assumption is made whether or not it has any basis in fact. Point of order, when there is no evidence, it is unlawful to make assumptions with regards to peoples motives. This is because our entire legal system is predicated on the concept of innocent until proven guilty. Making a law based on a specific case, any specific case, is a preemptive assumption of people’s motives. Making a law based on a hard case, that would be a preemptive assumption of nefarious motives, an automatic predilection towards guilt.

Point in fact, both the ADA and EEOC are based on hard cases.

Like all bad laws, they attempt to address the concerns laid out above by placing an onus on the plaintiff to prove the existence of nefarious motives.

Needless to say, this onus has proven woefully inadequate. Peoples words, said in jest or rage, are taken as evidence of a persons’ deeper feelings, regardless of whether or not this generally fits said persons’ overall behavioral profile. A person who spends his whole life catering to the disadvantaged can be brought down by a single tasteless joke.

Further, people change. Someone who, in the past, had some inaccurate opinions, can have them changed through experience. Later, he can run into someone who validates these original opinions, and deal with him appropriately. Guess what? He is about to get screwed.

So, the overall effect of these laws is not to prevent bad behavior by powerful actors, because powerful actors will simply avoid the problem by running a background check, finding out that said hopeful is disabled and, by extension, a potential liability. So they won’t hire disabled people in the first place. No, instead the law serves to protect the bad behavior of protected individuals, making life harder for everyone involved, and placing a very real stigma on this protected class.

So what can everyone else do? We can run background checks to keep jerks out of our workforce, but unions and business hating politicians make it very hard to keep out the trash.

Best of luck.

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