Re: Non-discrimination in contracts (was: Queer Politics)
Wed, 30 Jul 1997 22:57:38 -0700 (PDT)

On Tue, 29 Jul 1997, Steve Witham wrote:

> Dale Carrico asks-
> >why can't we
> >interpret acts of discrimination simply as breaches of contract? If we
> >assume that most people imagine that they are being hired to do a job and
> >do it well, why can't we say then that, should this be the case, an
> >employer who fires demotes or otherwise unfairly treats an employee in the
> >service of some fool prejudice is breaching contract with her -- unless
> >something about the employer's racism, sexism, or whatever had a very
> >conspicuous place *in* the contract to begin with?
> I don't think either permanent employment or an unchanging or unconditional
> definition of the job is usually assumed.

Certainly not. What I think might more properly be assumed is that people
are hired to do jobs and that so long as they do them satisfactorily they
may reasonably expect that their employment is secure, all other things
being equal.

> Interesting idea to contractually
> agree on what the job *isn't*, though, to put in something saying, "We
> specifically don't care whether X, Y, Z... and we won't fire you for
> those reasons." Advertising "An Equal Opportunity Employer" might be
> taken to imply that, too. (Although saying that a legal
> requirement?)

Part of my point was to suggest that contracts always rely for their
intelligibility and force on a welter of unstated assumptions. The very
idea of the contract which *specifies* every exigency in advance is a
fantasy. I wondered whether or not the idea that people are hired for
jobs in respect of their capacity to perform them rather than their
capacity to exemplify unfashionable kinds of humans is among these
unstated assumptions. It seems to be -- at least among many of the
unpleasantly surprised employees who find themselves abruptly unemployed
after employers discover, e.g., that they are gay. Btw, in most of the
United States the "Equal Opportunity Employer" designation does *not*
protect lesbians and gays. The whole thrust of the suggestion that we
treat discrimination as breach of contract was to divert the easy
interpretation that unpopular minorties seeking protections want something
for nothing (say, the outward appearance of a tolerant world secured at
governmental gunpoint), to a more congenial interpretation that would
accuse the racist, sexist, heterosexist, or whatever employer of trying to
have his cake and eat it too (say, wanting to profit from the existence of
a particular sociocultural regime of civility while selectively refusing
some of its central stipulations). Best, Dale