The march of equal opportunity: Firms plan gay audit to avoid discrimination claims. Some big English companies are rushing to find how which employees are homosexual before laws go into effect that could expose them to huge liabilities if it they are found to have discriminated.
The problem, of course, is that employers can’t manage their risks without knowing who’s homosexual. Equal opportunity laws presume malice, so if someone can present a colorable claim that a homosexual didn’t get something a normal person got it’s up to the employer to prove it didn’t discriminate. That’s why big employers adopt affirmative action plans—to make sure that outcomes are equal for employees in protected classes, or at least to show they tried to make them equal and documented reasons for unequal outcomes. If they don’t know who’s homosexual they can’t do that, and the official guidance is that ignorance will be no defence under the law. Hence the push.
Still, all is not OK with everyone. The government and conciliation services like the idea of a “gay audit,” because they like administrative tidiness, especially when it gives jobs to experts, consultants and functionaries. Lawyers and victims’ rights groups don’t like the idea, because they’ve built their careers on suspicion and employers who ask people if they’re homosexual arouse suspicion. There are claims, for example, that such questions would violate the right to a private life under the European Convention on Human Rights.
One point in the situation worth noting is the oddity of the notion that one could discriminate in ignorance. That notion has long been accepted though, through concepts such as “unequal outcomes” and “institutional discrimination.” More fundamentally, it seems to me, the situation stands for a basic problem with the new regime of rights that’s been erected over the past 40 years: it’s presumed that power will be abused, so it has to be subjected to comprehensive regulation in all corners of social life. To do that though requires the creation of a new power that is unprecedented in its scope and intrusiveness. But why shouldn’t the same suspicions apply to the new power?