Forbidden Grounds: The Case Against Employment Discrimination Laws

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Harvard University Press, 1995 - Business & Economics - 530 pages
This controversial book presents a powerful argument for the repeal of anti-discrimination laws within the workplace. These laws--frequently justified as a means to protect individuals from race, sex, age, and disability discrimination--have been widely accepted by liberals and conservatives alike since the passing of the 1964 Civil Rights Act and are today deeply ingrained in our legal culture. Richard Epstein demonstrates that these laws set one group against another, impose limits on freedom of choice, undermine standards of merit and achievement, unleash bureaucratic excesses, mandate inefficient employment practices, and cause far more invidious discrimination than they prevent. Epstein urges a return to the common law principles of individual autonomy that permit all persons to improve their position through trade, contract, and bargain, free of government constraint. He advances both theoretical and empirical arguments to show that competitive markets outperform the current system of centralized control over labor markets. Forbidden Grounds has a broad philosophical, economic, and historical sweep. Epstein offers novel explanations for the rational use of discrimination, and he tests his theory against a historical backdrop that runs from the early Supreme Court decisions, such as Plessy v. Ferguson which legitimated Jim Crow, through the current controversies over race-norming and the 1991 Civil Rights Act. His discussion of sex discrimination contains a detailed examination of the laws on occupational qualifications, pensions, pregnancy, and sexual harassment. He also explains how the case for affirmative action is strengthened by the repeal of employment discrimination laws.He concludes the book by looking at the recent controversies regarding age and disability discrimination. Forbidden Grounds will capture the attention of lawyers, social scientists, policymakers, and employers, as well as all persons interested in the administration of this major
 

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Contents

Consensus and Its Perils
1
Human Nature Social Theory and the Common Law
15
Force Discrimination and Free Entry
28
Rational Discrimination in Competitive Markets
59
The Case of Monopoly
79
From the 1937 Revolution to the 1964 Civil Rights Act
116
Constitutional Challenges to the 1964 Civil Rights Act
130
The Contract at Will
147
Pensions
313
Pregnancy
329
Sexual Harassment
350
Protected Groups Under Title VII
395
First Principles
412
Age Discrimination
441
Disability Discrimination
480
Symbols and Substance
495

Disparate Treatment
159
From Disparate Treatment to Disparate Impact
182
Disparate Impact
205
The Effects of Title VII
242
Separate but Equal
269
Bona Fide Occupational Qualifications
283
Appendix of Statutory Excerpts
507
Table of Cases
519
Author Index 524 General Index
527
Chapitre XII
333
Copyright

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About the author (1995)

Born in 1943, Richard A. Epstein graduated from Columbia in 1964 with a degree in philosophy. He continued his education at Oxford, earning a B.A. in law in 1966, and from there attended Yale, where he received an LL.B. in 1968. Following graduation Epstein joined the faculty at the University of Southern California, teaching there until 1972. He became a regular member of the faculty at the University of Chicago in 1973, where he was named James Parker Hall Professor in 1982 and Distinguished Service Professor in 1988. Richard Epstein writes extensively concerning the law. His works include Simple Rules for a Complex World (1995), Bargaining with the State (1993) and Forbidden Grounds: The Case Against Employment Discrimination Laws (1992).

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