Judge anti-discrimination law by results, not good intentions

In the midst of public debate about exemptions to anti-discrimination law and whether they should be expanded or eliminated, we often forget to take a step back and ask the larger questions.

Like “Does anti-discrimination law work?”.

Thousands of complaints are filed every year under the various anti-discrimination provisions in Australian law, from the Racial Discrimination Act to the Fair Work Act.

But do these laws ultimately help the groups they are intended to?

Not always. The wage gap between men and women, for example, narrowed dramatically prior to the passage of the Sex Discrimination Act 1983 and plateaued after it. The law ratified larger cultural changes that were already well in motion. It was not itself an engine of change.

Sometimes these laws can even hurt the groups they are supposed to help. Workforce participation among the disabled went down after the passage of the Disability Discrimination Act 1992.

The same thing happened in the United States after the Americans with Disabilities Act 1990 — workforce participation among the disabled went down.

The laws themselves are partly to blame, since they incentivize employers to act defensively.

If there is a risk that hiring an employee who belongs to a protected class will leave an employer vulnerable to a lawsuit (or, in the case of disability, an expensive accommodation claim) sometime in the future, it makes sense for managers to err on the side of caution.

Too often, discussion of anti-discrimination law gets bogged down in culture war battles and ostentatious moralizing, and no one stops to consider these laws in a pragmatic light, on the basis of evidence.

Any future reform or consolidation of anti-discrimination law should begin with weighing the costs and benefits –especially since it turns out the benefits may be a lot fewer than most people assume.

Helen Andrews is a Policy Analyst at the Centre for Independent Studies, and author of the research report The Limits of Australian Anti-Discrimination Law, published this week.