September 05, 2005

Don't Fire the Disabled Lesbian Blogger of Color

by PG

I agree that building a special provision into employment law to protect bloggers would be unwise, but Will Baude's discussion of why it is a bad idea confused me somewhat.

But taking Blachman's proposal (that employers ought to be legally required to show harm before firing somebody "because of" their blog) on its face, the public policy seems rather odd. The first thing the law does is make it more costly to fire bloggers than non-bloggers. This means that all else equal, employers would prefer to hire the non-blogger, because of the increased flexibility, and the insulation from later liability if they fire her. This means that employers are likely to discriminate against bloggers during the initial hiring; if a federal judge or magazine company or whatever else gets hundreds of candidates for a position, the bloggers among them will have a slightly higher hurdle to clear.

This will disproportionately hurt responsible bloggers, who wouldn't have said anything that the company objected to anyway, but who can't credibly commit to that ahead of time. In practice this means that in lots of companies that already sort of fear blogs because they don't really understand them, a quick google and bloghunt will just be a part of the hiring process.

This makes sense logically, except that I can't figure out why blogger status couldn't be made a protected status in the same way race and gender (along with other characteristics, depending on the employer and locality) are. That is, I understand why it would be absurd as a practical matter, but not as a technical one. If we're worried that hiring bloggers will become more costly than hiring non-bloggers, and that as a result employers will be less likely to hire the former, why not just make it illegal to discriminate at the hiring stage as well? If blogging is such a socially useful activity, protecting bloggers only at the point of termination seems foolish. The law can be written to permit firing bloggers who do something inappropriate with their blogging, just as sex discrimination law permits firing men who hold urination contests in the CEO's office, while protecting inoffensive bloggers.

September 5, 2005 02:08 AM | TrackBack
Comments

This whole discussion seems to me to exemplify the pathology that comes with blogging for a lot of people. To the rest of the normal universe, blogging is like stamp collecting, or skiing, or day trading, or writing letters to your friends. It's just an activity. If it doesn't affect the employer (like stamp collecting), it shouldn't be the employer's business.

If it might affect the employer (like stock trading in the case of some employers), the employer should be able to impose conditions on the activity, the violation of which is grounds for firing.

Linking to online newspapers, rehashing politicians' talking points and telling the world what you had for breakfast doesn't make you integral to the survival of the republic or anything like that. And, no matter how much you enjoy blogging, it isn't the sort of activity that needs protection from the outside world, like maybe gay sex and interracial marriage.

To put it another way, this oh-so-special blogging technology doesn't really change anything for the purposes of this discussion. Suppose that, instead of being a blogger, someone had a real part-time job as a newspaper reporter. Suppose that person freelanced or something, and there was not even the slightest possibility that the reporting job would interfere with any other job that person might pick up. Would you argue that employers have no right to consider this person's second occupation when deciding whether or not to hire him? If Declan McCullagh decided to cut back his hours at CNET and tried to get a job at Microsoft or the MPAA, I think it would be laughable that his "reporter" status should protect him from discrimination.

For a libertarian, you seem to have your head up your other end on this one.

Posted by: TO at September 5, 2005 09:36 AM

Uh, pardon but since when is PG a libertarian, or anything even vaguely confusable with one?

Posted by: Will Baude at September 5, 2005 10:09 AM

No, I think I can say that without fear of contradiction. It appears that the charmingly anonymous "TO" has his head up his other end on this one.

Posted by: A. Rickey at September 5, 2005 12:07 PM

TO,

I did go through an Ayn Rand phase in high school, but forgive me my youthful indiscretions. You might have me confused with Sean Sirrine, the libertarian currently blogging at De Novo.

I agree that there's nothing special about blogging technology; it's simply a more effective way of exercising free speech than the traditional public square. And as I say in the first sentence of the post, bloggers should not have special legal protections in employment. I just wanted to point out that the concern about bloggers' becoming less likely to be hired under a hypothetical non-discrimination-in-firing law could be obviated by enacting similar protection at the hiring stage, much as has been done for statuses that we actually do think are worth protecting. ("We" meaning the majority of Americans who believe in the Civil Rights Act of 1964, which group admittedly excludes many libertarians, who carry Goldwater's belief that "you can't legislate morality" into areas he probably wouldn't.)

Posted by: PG at September 5, 2005 03:47 PM

Forgive the tone, the last remark, and some of the substance, please. I will try in the future not to comment before I've had my coffee.

Posted by: TO at September 5, 2005 04:43 PM

Speaking of substance, let me respond to the substance of PG's post. The intial unintended consequence of the Blachman bill could indeed be addressed by layering a no-dicriminating-against-bloggers in hiring policy, but it wasn't Blachman's suggestion so I didn't deal with it.

One would have to know more about the idea-- are we talking disparate impact test under the civil rights act, or something more like the ADA, or some sort new-fangled actual-harm (or forseeable-harm) rule?

Furthermore, since the status of being "a blogger" is considerably more mutable and (sometimes) less observable than race, gender, age, religion, sexuality, or disability, one couldn't just import the statutory language or jurisprudence from any of those things without more explanation.

If Blachmon or anybody else intends to propose a blogger anti-discrim bill I will be happy to hold forth.

Posted by: Will Baude at September 5, 2005 10:14 PM

Blachmon=Blachman, of course.

Posted by: Will Baude at September 5, 2005 10:14 PM
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