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Broken symmetries offer powerful insights in social science. When we treat differently two things that a theory says should be treated similarly, that is often a strong clue that theory is missing something important. In particular, when a normative theory says we should treat two things similarly, that we actually treat differently, that suggests we do not actually follow this normative theory.
Oddly, many folks feel they are excused for treating apparently similar things differently if they can point to any feature distinguishing those things:
“You you do X in case A but do Y in case B, yet A and B do not differ in the features F,G,H that your theory T says are relevant for cases A and B.”
“Ah, but cases A and B differ on feature R.”
“But your feature R is not obviously relevant in your theory T.”
Except person 2 rarely anticipates critique 3; they seem to think it sufficient if it is logically possible that feature R may somehow be connected to the theory’s features F,G,H.
Here is an example from Bennett Haselton reviewing Steven Landsburg’s new book The Big Questions:
Landsburg: Bert wants to hire an office manager and Ernie wants to manage an office. The law allows Ernie to refuse any job for any reason. If he doesn’t like Albanians, he doesn’t have to work for one. Bert is held to a higher standard: If he lets it be known that no Albanians need apply, he’d better have a damned good lawyer.
These asymmetries grate against the most fundamental requirement of fairness — that people should be treated equally, in the sense that their rights and responsibilities should not change because of irrelevant external circumstances.
Haselton: But I think the laws do treat all people equally, because they apply equally whether Bert is discriminating in deciding whether to hire Ernie, or whether Ernie is discriminating in deciding whether to hire Bert. The laws don’t apply equally to all roles that people play, which is the distinction that Landsburg is highlighting — but laws never apply equally to different roles, since roles are defined by what we do, and what is the point of laws, except to draw distinctions based on behaviors?
It does not seem to occur to Haselton to ask why the different role of employee vs. employer is relevant in our standard theories suggesting we ban ethnic discrimination. He feels he is done if he identifies any difference between the two cases.
But everything is different somehow; if finding just one difference is enough to excuse treating any two things differently, one will always have excuses for any asymmetric treatment.
Broken Symmetries
There's an obvious, massive asymmetry. An employee takes orders from his employer. Yes, the employer has to "deal with" his employees, but there's a huge difference between giving orders and taking them. If non-discrimination applied to choice of employers, then the government is telling private parties to spend large chunks of their time obeying certain particular other private parties (namely, the employers whom they would choose apart from their discriminatory practices). Bad in itself, and a dangerous precedent.
Interesting post, as an economist and (mostly) libertarian it seems to me people should be able to discriminate in both hiring and job selection processes. In a perfect world both these choices would show long term problems and employees using this strategy would be rewarded less and companies with the strategy would be out-competed.
In the real world there are huge differences in the two situations. Forcing a company to choose the best candidate is somewhat different to forcing someone to work against their will - we call that slavery.
There is another real-world problem; it is infinitely harder to prove why a candidate rejected a job offer than to prove systematic racism (or any -ism) by an employer simply due to the number of jobs a company offers (and number of applicants) compared to the number of jobs an individual applies for and is offered. And also the willingness of the wronged party to follow it up.
So should an employer be given the right to sue a (non-)employee for discrimination? If the (non-)employee can sue the employer then yes.