Forbidden Grounds: The Case Against Employment Discrimination Laws. - book reviews

National Review, March 1, 1993 by Frederick R. Lynch

Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard Epstein (Harvard, 521 pp., $39.95)

CYNICAL conservatives and moderates who thought they could ignore or tame the affirmative-action juggernaut that quietly rolled through the Reagan-Bush years must now confront the machine's aggressive new drivers in Bill Clinton's "Cabinet that looks like America." Opponents will need the massive data, logic, and originality marshalled here. Richard Epstein's major thesis is that government-enforced anti-discrimination efforts under Title VII of the 1964 Civil Rights Act intrude upon freedom of contract and the "concomitant but limited role of the state" by expanding the list of "forbidden grounds" for hiring, retaining, or promoting employees: race, sex, age, national origin, religious belief, handicap, and sometimes sexual orientation. The author admits that one kind of government abuse (state-sponsored segregation) begat another (the rederally sponsored anti-discrimination frenzy). But the necessary, corrective mission of the 1964 Civil Rights Act was quickly corrupted by judges and bureaucrats. Epstein shows all the twists, turns, and doublethink by which the language and intent of Title VII were transformed into an enormous tangle of regulations that encouraged quotas. His provocative solution is to repeal the "entire apparatus of anti-discrimination laws in Title VII ... insofar as it applies to private employers." He explains, '%luntary affirmative action is perfectly acceptable by private firms, but far more problematic when undertaken by government, precisely because there is no adequate theory to explain the distribution of government largesse among its many eager recipients." These distinctions, however, are likely to be lost on the zealous beancounters of the new Administration.