National Clothesline

In March, the House of Representatives passed a bill that would add “genetic information” discrimination to the nation’s civil rights laws.

Not one of my clients does genetic testing. In fact, I doubt any of them would know what to do with the test results. I try to stay up on scientific issues, but I am not aware of the discovery of a “lazy jerk” gene that would be useful to employers.

Of course, I understand Congress is worried that employers, once DNA testing becomes cheap and more available, will screen out applicants and employees with a genetic propensity for illness or a gene that suggests they might have a disability.

My experience, however, is that employers want conscientious, hard-working employees, regardless of their race, sex, age, religion, color, disability, marital status, sexual preference, or DNA markers.

In the 44 years since Title VII of the Civil Rights Act was enacted, I am not aware of one instance where any government — federal, state, or local — has narrowed the discrimination laws. Rather, the discrimination laws have been expanded to included bases that any rational person would have not thought was a problem in American society.

In some jurisdictions, it is illegal to discriminate against an applicant who is unemployed. Huh? Isn’t it an admirable trait that an out-of-work person is looking for a job?

In New York recently, women were given certain rights to breast feed or extract milk in the workplace. Did anybody see that coming or think it was a serious problem?

Has any legislature begun to worry about the poor, healthy, white, 25-year-old male employee? When a company decides to fire such a person, it rarely consults with a labor attorney because the laws were not designed to protect such an employee.

If the person were black, female, disabled, or Latino, the company would be more cautious in making the termination decision. That hardly seems fair, but there is not a single person running for election on the platform that young, white men need protection in the workplace.

Fairness in the workplace is an honorable goal, but it is unrealistic. Fairness is in the eye of the beholder. What is fair to one person may be viewed as unfair to the other.

It is not fair that an employee with cancer must eventually be taken off the payroll as he or she becomes too sick to report to work, but it is not fair for the employer to lose money because it cannot afford to pay non-productive employees.

If racism is ever completely eliminated in American society, will everyone agree that the repeal of the race discrimination laws is appropriate or fair?

How will the current laws work if whites become the minority race in America? Will race discrimination take on an entirely different meaning, or will young, white men always be irrelevant under the civil rights laws?

Circumstances change, but it is unlikely the laws will change with them.

What I am afraid is happening is that we are moving to a European view of employment, where employers cannot fire employees without just cause. “Just cause,” unfortunately, is an awful lot like “fairness.”

Every day, some arbitrator is asked to determine if an employee was terminated for just cause under a union contract, and he reaches an irrational judgment. Judges and juries do that as well.

I saw a decision the other day where the employee had admitted having a beer before coming to work as a bus driver, but the arbitrator found that the employer never proved that the beer was not non-alcoholic beer, as the driver later contended.

If the legislatures stop right now adding to our anti-discrimination laws, it would be better than a universal “just cause” requirement. I do not, however, see that happening.

Every time a television magazine program, like Dateline, reports on an employee who was fired for reasons that, on their face, sound “unfair,” there will be pressure to make such conduct unlawful.

I suspect the breast-feeding law enacted in New York was based on a situation where the company was perfectly willing to work with the mother/employee, but the employee pushed too far, and the company had no choice but to let her go.

A good employer rewards good employees, fires bad ones, and uses a form of “just cause” whenever it disciplines employees.

Good employees do not need protection; bad ones do. Until our lawmakers try to understand how difficult it is for an employer to work under the labor laws they have created, they should leave well enough alone.