Socialism in the traditional sense - government ownership of the means of production and state control of jobs and incomes - is dead. From Leningrad to Managua, those who thought they had all the answers simply couldn’t deliver the goods.
Still, here at home, while the United States was off winning the battles for free enterprise and limited government around the globe, an expansive, litigious and belligerent form of neosocialism surreptitiously gained a foothold tight under our collective noses.
In ways that Lenin would envy, vague and fluid laws paired with jackpot penalties for petty misdeeds have empowered governments to tell us what to do and how to do it.
Yesterday’s workplace disputes, significant or trivial, have become today’s Federal cases. In ‘The Excuse Factory’, Walter Olson shows how Kafkaesque employment laws have produced a workplace crisis that’s destroyed businesses and jobs, cut efficiency and inhibited personal freedom.
In San Francisco, for example, to obtain a proper mix of firepersons, recruits are no longer required to carry a 150-pound sack up a flight of stairs. Instead, a 40 pound sack is pulled across a smooth floor. While that’s certain to please the gender-balancers at the Equal Opportunity Commission, its unlikely to turn out well for a 150-pounder, male or female, who’s hanging from a flaming third floor window.
With nearly every decision a potential lawsuit, the management of working relationships in America has become a giant game of constant jeopardy, a legal straightjacket where inane rules replace a common sense.
For me, as a restaurateur, I baulk at the extent to which the government has added the duties of speech cop to my job. A failure to monitor and correctly interpret workplace conversations, inspect cartoons that roll off the photocopier or censor jokes can easily result in a lawsuit for permitting a hostile work environment, sexual harassment, emotional distress, disparate treatment or animosity between workers of different genders, races, abilities, religions or ages.
With narcolepsy (the tendency to fall asleep at inappropriate times) now a protected disability, I can become a target under the Americans with Disabilities Act if I wake up a sleeping waiter. To accommodate a government employee with narcolepsy, a federal judge rules that bosses should tolerate an occasional nap.
I am also on legal thin ice if I do or don’t crack down on a cook who’s packing a Berretta-92. A federal court ruled that a company could be sued for wrongful discharge for failing to accommodate the chemical imbalance of the dismissed employee who was bringing a loaded gun to work and stealing money from his co-workers.
In Texas, a court ruled that the spouse of an employee carrying on an adulterous affair could sue the company for letting this happen. So now, in addition to keeping the beer cold, I’m in charge of observing and obstructing illicit attractions. If I don’t perform the task with prudence, I might land in court for defamation or invasion of privacy.
I can also be sued for giving a negative job reference (defamation) and for giving a positive reference (failure to warn if an ex-waiter commits an atrocity at his new workplace).
Courts in California have ruled that it’s an invasion of privacy for employers to have job applicants take tests that gauge their psychological stability, yet the employer is also held accountable if an employee snaps and is overly harsh with customers or co-workers. In addition business owners have been sued for allowing nepotism (unfair to minorities who aren’t in the family) and for prohibiting it (unfair to married couples).
Miller Brewing Co., fearing harassment charges in today’s litigious climate, fired Jerold Mackenzie, an otherwise fine employee, after he repeated a gag from a “Seinfeld” show, seriously offending a female co-worker. This summer, a jury ordered Miller Brewing to pay Mr Mackenzie US$26.6 million for wrongful discharge.
No one talks about nationalising industries anymore, says media baron Rupert Murdoch, because the extraordinary growth of regulation has given effective control of them to the government without it having to assume the hassle of ownership. Trial lawyers play the supporting role of private vigilantes, Mr Murdoch asserts, enforcing the neosocialist writ - and extending the scope of regulations through the proliferation of litigation.
What’s next? Mr Olson points to an article in the Harvard Law Review that targets the legality of face-to-face hiring interviews that permit illegitimate appearance evaluations. The author recommends that all job interviews be held behind screens.
According to another Harvard article that questions the legitimacy of allowing private employers to distribute jobs or income in accord with either current or potential productivity, I’m in clear violation of the Ivy League egalitarian vision because I pay more money to my best chef. Does anyone at Harvard know why it was nearly impossible to get a good meal at any Moscow eatery?
At the EEOC, there’s now this peculiar conclusion: Absent discrimination, one would expect a nearly random distribution of women and minorities in all jobs. The Harlem Globetrotters, 50% female and 5% Asian? Manicurists, 50% male? Male decorators, 95% heterosexual? It’s currently a federal crime for the owner of an Ethiopian restaurant, in order to enhance the milieu in the dining room (and to improve the waiters’ knowledge of the cuisine), to hire an all-Ethiopian waitstaff.
In Chicago, after an eight-year legal battle and nearly US$200,000 in legal bills. Korean-American entrepreneur Andrew Hwang threw in the towel in his janitorial service business. Mr Hwang, out of step with the latest definition of diversity, was hiring too many Koreans.
It’s a safe bet the vast majority of Americans would agree that America’s regulators, barristers, law makers and bureaucrats produce more grief and misery on any given day than all the office jokes ever told.
Why do we put up with this? Perhaps it’s time to give the overseers a dose of their own medicine, a class lawsuit action, filed by millions of Americans, the next time they gang up and try to eradicate someone like Andrew Hwang. The charge? No different from what they’re so quick to levy on the rest of us - intentional infliction of emotional distress, workplace harassment and the creation of a hostile environment. Plus colossal extortion.