CHAPTER 6

            A FAIR AND PROSPEROUS WORKPLACE

 

            “A certain scientist, Galileo’s contemporary, was no more stupid than Galileo. He knew that the earth revolves, but he had a family. And when he got into a carriage with his wife, after accomplishing his betrayal, he reckoned he was advancing his career, but in fact he’d wrecked it.” [1]

 

            “Eagles don’t flock. You have to find them, one at a time.”  H. Ross Perot

 

                        - 01 -

            To keep our jobs, we must be worth what we make; then address ‘discrimination’

 

            I grew up in an Ozzie-and-Harriet suburban moderate affluence, and I hated manual chores.  When my father preached that I would have to "learn to work,"  I definitely took umbrage. I wanted to believe you could always do just what you were good at.

            One “chore” was mowing the lawn, including the 105-foot long "backyard baseball" stadium.  We had a self-propelled reel lawnmower, so the job wasn't hard.  I would be paid perhaps $5 for it, and then my father would inspect ("review") the lawn and deduct a dollar for every tuft of grass left.  95% may have been good enough for an “A” on a closed-book, in-class test at school, and in the 1950’s, “slide rule accuracy” sufficed on trigonometry and physics tests; but in the workplace, whether it is Ben Casey’s neurosurgery or a general ledger closing, 99% is usually not good enough.

            Now, almost four decades later, I can appreciate the work ethic my dad was getting at. He called it, “formation of proper habits.” Actually, sometimes his ideas fit modern ideas of efficiency. I hate to be required to do something in some bureaucratic, or error-exposed manner when I know it could be automated, or moved to a more appropriate area. I resented my father’s telling me how he wanted a chore done, without telling me “why.”   Yet, willingness to do what one is told is indeed a foundation of  “proper habits.” 

            Professionalism, that quality that leads others to trust me to take care of something for them, comes more easily if I have good habits and have my head on straight.  Any professional, though, does need to understand the reasons for the “right ways” to do things, whether infection control in surgery, or security and auditability in financial systems. 

            At the final exam in a Local Area Networks class, the professor generously offers to make the final exam open book.  “I will make it like the workplace,” he announces, after his classroom stories of “pinging” in software that hunts for submarines.

            In my field of Management Information Systems, the workplace has indeed become a series of continual open book tests, with each implementation or system change, and each week of answering beepers on Nightcall.

            Yes, we joke about Nightcall, it sounds like the name of a comedy horror movie where a computer virus comes out through the keyboard, transmits through tactile fingertips, and turns into Ebola inside the poor “modem man” fumbling through sessions on a laptop with a slow modem, trying to get at a workaround to get the systems up for the clients by morning. In Clive Barker’s world, he would  have a seizure anyway and wake up looking like an E.T dripping wet with tapioca pudding (perhaps first in virtual reality).

            Let’s get to the “main event.” Professional activists for gays and lesbians and for other “minorities,” look for legal “quick cures” for discrimination. Real people worry about layoffs and excessive work hours.

            Yes, discrimination in the workplace is still real today and it does matter. It has tended to become more subtle and insidious. It can be a glass ceiling based on gender or race, or subtle differences in compensation and benefits based on “family status” and sexual orientation.

            But, with the workplace revolution - not just downsizing but complete re-engineering and renegotiation - it makes sense to look first at what we can do help ourselves deal with plain job insecurity and cold shins - and at what kinds of practices, including government deregulation and corporate practice, that would help us all - gay or straight, black or white, man or woman. For, at the outset, one observation stands out in summary: the workplace is much more decentralized and entrepreneurial, and old ideas about organizational policies related to discrimination can quickly become obsolete. Professionalism seems to have become at risk; at least, its old paradigm of an “honest day’s work” no longer suffices.

           

            In the past few years, many “salaried professionals” have begun to experience "downward mobility." They loose high-paying, steady "jobs" and are not able to find equivalent positions. In the late 80’s, they would sometimes fall out of favor suddenly, as their immediate superiors may see them as competition for fewer “management” jobs. (Yes, I’ve watched that go on. I’ve seen the boss keep score on every little technical mistake by a rival, as the Jacob’s-Ladder of  “progressive discipline” gets climbed, and then set him up.) Many "salaried professionals" often lose everything and have to start over, with “real” jobs. They may lose their overly mortgaged homes, purchased in the belief it was right to use Other Peoples’ Money to provide a castle for their kids (and to keep them segregated). They can no longer put their children through college, as mine did, despite my antics. They may feel their place in society has been taken from them, just like it used to be taken from gays when they got “found out.”

            In a more freewheeling society, this may not be so bad. Men and women of real substance will be able to lift themselves out of the gutter several times in a life. Bad times come.  No one is entitled to prosperity  forever. It should be passed around. When you get older, as in the movie Logan’s Run, it’s time to pass the torch, and let other, particularly younger people, come to bat. But families can’t hang together with this. Kids need stability, and parents want to help them with college tuitions. Maybe musical jobs for parents really will put the kids on a more equal footing, whatever their families.       

             Ironically for me, the College of William and Mary's drama school developed an outstanding dramatic reading of an executive's job loss and starting over (replacing another executive!) in 1984, on PBS.  The preparations, the Tuesday-after-Labor-Day firing (“the level of your marketing expertise...”) , the turning over of the company credit cards to the outplacement counselor, the interview-coaching sessions (“why should we want you if your previous company  didn’t”?), came across as an end-of-life emasculation. It seemed as if the College’s drama school (which my freshman roommate would attend) had discovered what it meant to be kicked out, cast out as superfluous, as unwanted, as not fitting in. I felt like the College had sent me a secret, encoded apology.

            For, the new looseness in society, the new choices were already making people prove themselves, particularly in the workplace, where, one man or woman at a time, regardless of family or cultural connections or responsibilities and regardless of the privileges and perks of their pasts,  they had to prove their work was really worth what they had been paid, when there are people with fewer responsibilities (or, on the other side of the world, a lower standard or living) who can perform the same work for much less.  This is “individualistic competition.”  The new freedom, and the new personal competition that went with it, meant zero-base budgeting for everybody.

            And why do we subject ourselves to this open, global competition? Why not just shut our borders, and protect the stability of old-fashioned careers in the good old days. No doubt would such economic protectionism mean fewer goods and higher prices, it would quickly be accompanied by “cultural protectionism,” much more explicit protections from the state of the old-fashioned family.  Pat-Buchananism certainly appeals to people who don’t want to grow (up). The lower standard of living of other parts of the world is a real problem. Other peoples will demand the same moral claim on the earth’s limited treasures (and possible irreversible pollution, through damage to the ozone layer, cutting down the rain forests, and global warming) as we have enjoyed. Businessmen will find that they can make more money not only by using cheaper labor abroad but also by developing, even with the most progressive of intentions,  overseas markets as consumers as environmentally conscious consumers. In time, private investment in markets in the Third World (even at the expense of some jobs at home) will tend to encourage world stability and eventually reduce the motives for terrorism and war. So this is an adjustment we must make if the next generation is to know individual liberty, autonomy, and mobility as we have come to enjoy.

            We are also “biting the hands that feed us” as consumers, by demanding the lowest possible prices on everything from electronics, computers, and clothes to airfares. Our pension funds, that have our money invested, own increasing shares of America’s corporations and put increasing pressures on their bottom lines. No wonder we may have to rotate the best jobs in shifts and give in on wages and benefits.  

 

                        -2-

            “Professional” people do drop out

      

            Conventional wisdom during these days that the Congress plays at keeping its Contract with America, is that the labor market is dropping out for those without specialized school and higher education. Those stable blue-collar manufacturing jobs that used to form a backbone for a stable, homeowning middle-class are shipping out to Third World areas, just as salaried positions fall to the mergers and downsizings. The people who will make it are those with knowledge skills and that infrastructural “memory” that can’t easily be exported. People need both “job-ready” established skills and the flexibility to pick up new ones all the time.  Supposedly, this all started after the oil shocks of 1973. Faced with a squeeze, companies were no longer subsidize a sessile, if socially stable, labor force. Actually, it may have started earlier, in 1969, as younger people (including straights) began, after Stonewall, to realize their were new ways to define themselves and to see that institutional practices to support the old patriarchal structures had become habit-forming indeed.    

             The “knowledge-work” model may apply to  younger people. This is a great time for young men and women with talent and skills and few commitments, and a horrible time for disadvantaged young people growing up in an increasingly matriarchal underclass. But, as workers get older, more disturbing things happen to them; they actually become expendable.

            Consider the old fashioned allegro commodo for corporate advancement in the "good old days."  As you got promoted, you did less of the dirty work yourself, but managed people. If you had gone to college, maybe you had skipped “low work” altogether and been excused from the draft, too.  In computers, you advanced from the grunt work (and, in the 1960’s, laborious desk-checking and limited turnarounds) of coding to something more nebulous, “systems analysis.”   You became a "people person," and perhaps develop a span of control, of people working “for” you.  If you were a married male head of a single-income household, this fit your culture just fine.  After World War II, companies tended to pay their career employees on the upward mobility track a "family wage"; in earlier times, lower-tiered workers, whether on the auto assembly lines or in the mines, sometimes were "exploited" indeed, even if industrialization was gradually rising the average standard of living.

            "Stagflation" and instability borne of international problems, as well as a moderate downsizing in defense as Viet Nam drew down, tended to start some companies on the path of discharging older workers close to collecting their pensions. By the mid 1980's, improvements in technology and lower oil prices tempted investment banks into the benefits of combining competing companies through mergers, buyouts, and the like. Into the 1990's, middle managers, who often lacked the technical skills of the "Indians" who reported to them, were seen as expendable, while the executives near the top of the food chain felt the pressure from shareholders and investment bankers to molt them. To the leftist mind from the 60’s, this might have seemed like a curious justice, meted out by the establishment itself to the last “accomplices” of “capitalism.”

 

            -3-

            Swallow - Gulp on - your pride

             

            So, a lot of the “fat decadent middle class” started getting pretty desperate, and they quickly attracted the psychological ambulance chasers. The career doctors started coming up with moralistic remedies. Buy your own job, they said. “Three strikes ... you’re a consultant.”[2]  Become an entrepreneur. Get things done on a shoestring, and by all means, do things for yourself, like insert your own cards into the expansion slots on your PC. Don’t be greedy; buy your own toolkit of PC’s and modems and use them willingly in the workplace (which doesn’t sound quite fair when all companies say they  will take disciplinary action against associates who make personal use of corporate resources).  Find some practical, everyday need and fill it, maybe 16 hours a day.  Sell doughnuts.  Decorate wedding night suites. Or peddle life insurance. A Business Week article in 1992 laid out these steps: “Downscale now, turn to family, rethink values, reach out, get new credentials, call your parents, work for yourself, do grunt work.”[3] Here is zero-sum game thinking from a progressively “conservative” business publication. At the same time, we would hear how bureaucrats had been thrown out into the streets of Moscow after the fall of the Soviet Union were now subjected to the “shame” of selling little knickknacks and their memorabilia in the slushy streets.   

            Even more telling was the advice to "work for free,"  to intern, to get a foot in the door.  I have even seen cover letters offering to work as a "volunteer" for a while, an offer inappropriate to a financial institution.

            A common "complaint" of the downsizing economy was that the "survivors" were being expected to work longer hours for the same compensation and perhaps fewer benefits, while their buddies were walking the streets.  In times past, this sort of result would have been seen as part of the "evils" of capitalism and the "profit motive". Part of the problem has to do with the downward pressure health care costs places on employers and to some extent the problem could be relieved by health care reform policies which take health insurance out of the workplace. More telling, besides the observation that Americans have to compete with workers in other societies who will do much grubbier work for less money, is that investors and business owners are putting their own personal funds, ultimately, into paying these salaries.[4]  Thirty years ago, the moral high ground tended to regard business owners as “parasites” upon workers actually endangering their bodies. With the information revolution, the modern view is just the reverse: the people who really take risks are those who put down their own money and risk starting over. You might as well if a cushy salaried job is no longer any security.  

            With hourly, non-exempt jobs covered by union contracts, employers could not chisel easily at wages and benefits, but they could eliminate positions through automatic and job export. Sometimes, they might try to force expensive employees to leave with the cynical step of tightening up on flex time. For salaried “exempt” positions, unscrupulous employers could sometimes coerce employees to work almost unlimited free overtime, quite legally; perhaps, many professionals do this eagerly anyway, out of personal machismo.[5] With an “exempt” position, none of one’s compensation is at risk, but one can be compelled to work whatever hours it takes to complete an agreed-upon work goal, without overtime pay, compensatory time, or even payment of incidental expenses (besides travel). “Where downsizings are the norm, wages rise slowly, in part because workers are too fearful of losing their jobs to demand more money.”[6]  Companies, after being vague on their work-hours rules,  sometimes try to get as much from each exempt employee and then pay expenses or allow compensatory time only to employees who repeatedly ask for it; this may pit employees against each other to see who can sell themselves as the “cheapest.” Often, employees who can will offer free time "on call" to keep a place running, while a company downsizes or merges, in order to keep their jobs, although often such employees may be rewarded with better raises or bonuses.  This practice, "lowballing," can make it very difficult for people with heavy obligations (whose "kids are sick") to compete in an Darwinian workplace.[7]  It can lead to coworker resentments that smolder without any possibility of open discussion.

            One researcher notes American fathers work an average of 62 hours per week (often more than one job) and spend 20 hours weekly with their children. Mothers average 36 hours weekly in the workplace and 45 hours with the children.[8] Many parents obviously will have trouble keeping up.   

 

                        -04-

            The winners take all

            

            If automation and information technology is raising our standard of living, why should so many of us have to work so much harder and such longer hours just to keep our jobs?

            I could be cynical, like the union ads complaining about Food Lion. Some employers (like, in certain circumstances, commanders in our own military) will do what they can get away with. And the “bottom line” view reinforces itself. Many executives may feel it’s either their careers or their employees. Some, like Scott Paper’s Albert Dunlap, remind the media that in downsizing they really save the jobs of the majority of their associates by having stronger companies and bottom lines. “The people who are laid off are laid off because there aren’t jobs for them. To keep those people on the payroll, in fact, jeopardizes the jobs of the rest of the workers.”[9] Some complain vaguely that government regulation reduces the number of jobs.

             But many top executives are also filling their own organic piggy banks while they had out pink slips. They are the most obvious winners of this new era of apparently ruthless competition.  Similarly, the very best home run hitters, models, or actors who can play idiot savants (or, in my case, writers!) stars land huge contracts while all their competition struggle.  It’s “winner take all.” One can sometimes understand the left’s indignation with “capitalism.”

            There are many winners in today’s games of economic warfare, and it’s not just CEO’s.  The young, agile software engineer,  the survivalist jack-of-all-trades who can teach himself to plug or solder components onto his motherboard or configure a new network. The geekolator can get multiple offers. And the partner or business owner, with greater personal liability and commitment to results in a particular endeavor, derives leverage from his own profits. Wealth - whether money or skills - leverages itself the way snow begets more snow. This is not just about class exploitation, the way socialists in the 60’s would have seen it. Many people who stumble really are over-extended, undermined by inherent instability in the way their careers have been mortgaged on the sacrifices of others or protected, until recently, from foreign competition for the same standard of living. Many people who succeed know how to solve real problems. Even back in the 1970’s, when I was a marketing representative unassigned to an account, I remember the comment, “this is a capitalist system, and we can’t keep people we don’t need.”  Capitalism does force us to move around and put ourselves where we are really wanted - or needed, to raise customers’ - other people’s - standard of living, before we indulge ourselves. Capitalism is not the problem. But it can, as the Russians are finding out, make people clean house and start over.    

            Liberal commentators have described the erosion of stable, well-paying middle-class salaried or union jobs as an outcome of the loosening of government monitoring of employers during the Reagan years. Employers talk about “global competition” and protectionist union activists point out that many of the new “minimum wage” jobs are in service industries that can’t be readily exported after all, while union manufacturing jobs go overseas and middle-class “company towns” die.  Social conservatives insinuate (usually without direct statements) that the erosion of the cultural pedestal for the “traditional family”  has indeed made it easier for employers to put employees into individual competition with each other, and they may be right. Young adults may become cynical and become wary of starting new families, for fear of falling behind, and many singles can take leverage their own time and resources quickly and get a head start. However, many people with families may find a practical synergy of human and practical skills in their committed relationships; their investment in human and psychological capital may become important in the long run than just training and money to spend on themselves.

 

                        -05-

            The Darwinian workplace allows more freedom

                        

            Workplace changes match technological and cultural changes that empower and challenge the individual, as compared to the group. Most people (and not just the “yuppies”) want to be free from “artificial loyalties,” and essentially become their own bosses, captains of their own personal lives. As recently as the late 1960’s, employers might tell their “salaried professionals” not only how to dress but what kind of car to buy and where they should live.  An extreme example was EDS’s practice of conducting “house interviews.”  Unmarried adults over a certain age were excluded. In an earlier era, Ford had watched its workers, housed in company towns of “barracks”  with a diligence unmatched by today’s military, even with its gay ban. Employers intentionally moved into outer suburbs, sometimes to “get away from the blacks” but also to attract a more conforming, loyal “family-oriented” staff; this corporate collectivism (encouraged by earlier forms of liberal government paternalism) actually worked against the interests of minority families and the environment.  Employers demanded absolute commercial and political loyalty (sometimes to the point of requiring employees to contribute to specific candidates’ campaigns), and unlimited access to their salaried employees’ time; and yet they could pretend (very much like the military) they were providing complete lives (including ”family”) to those who would conform. No wonder, EDS used to recruit ex-military officers (who could rescue two of its employees from Iran). Then EDS would take over data processing departments of banks, insurance companies, and Blue plans, as employees would wonder if they had been conscripted a second time.

             Now, people are generally much freer from intrusive employer paternalism, but they must actually justify what they are paid with what they contribute daily to the bottom line. They must accept the idea that the market price for their services can go down in time, just as it does with a used car or condo.  Today, competitive technical employees move around, work from home over modems while they watch the kids (and commute less), but they also invest in their own training, toolkit,  and career management. They are no longer “employees” but “associates” and, often enough, “co-owners”. So most of the more flexible (often younger) people who pick up skills quickly are also coming out winners of this “new world order.”  One may have more freedom, but only to the limits subsumed by where one is willing to invest one’s own personal resources. One has freedom within very real but practical limits. This is a definite moral postulate.

            Complementary to the productivity-associated limits on income associate with personal autonomy, is the notion that one’s increasing power as a consumer has karmic consequences for one’s job. Your boss, after all, has really become an agent of his consumers, one of whom is you, demanding the lowest possible price for goods or services.                   

             The central point of all this laissez-faire career hype was, to secure your personal freedom by staying in touch with the everyday "fair market value" of  your job skills. Get used to the idea of getting paid only for the direct results you get!   People began to freelance, move from one situation to the next. In MIS, this practice had already been somewhat established, as consulting companies would provide "bodies" to large companies or to government (particularly in defense) for big projects. Sometimes, now, the focus seemed to be on the very short term, the "next quarter's bottom line."  Programmers have been told to build little cottage industries on their home PC's, first with little spreadsheets and database “fourth generation languages,” later with “object oriented” technology, which is often hard for mainframers (as in “mainstreamers”??) to digest. (As the year 2000 approaches, the demand for mainframe skills may well revive.)

            Quickly, the notion developed that, for the sake of long-term job or “employability” security,   one should get used to compensation on a "piecework" rather than salary, basis, very much the way salespeople are compensated by commissions. Expanding the concept of variable pay for results is a good first suggestion for employers to make their associates’ careers more secure.  People should learn to live with the means provided by such results-oriented compensation.  A few companies who had already been following this practice, attracted media attention. For example, CBS 60 Minutes and The New York Times[10] wrote about the Lincoln Electric Company, in Ohio, which pays employees only on completed items.  Sick leave is not allowed; persons who could not come to work for any reason, such as a family illness as well as their own, are not paid. By varying compensation according to results, the company had always been able to avoid layoffs, and during the best of times some "blue collar" employees made as much as $80,000 a year as "entrepreneurs." Labor unions taunted that such practices just pit employees against each other, and that they were particularly hard on parents with young children. However, Japanese companies, with their “‘family’ spirit”  used to vary compensation as an alternative to layoffs, so that “‘unemployment’” pay in Japan is spread over all employees and not limited to discharged employees, as in the Western world.”[11] Perhaps this is less so now.

              “Exempt” jobs could be described mathematically in terms of “objectives” to the extent associates practically “buy” their positions with the rest of their lives. If associates will meet these objectives within fixed budgets without variances, more people presumably can be employed.  Effectively, this downloads the risks of additional time and even materials costs from centralized enterprise to the associates themselves, to guarantee that results are delivered for a given investment by an enterprise; and this can be justified if associates actually own more of their enterprises.

            Hourly employees could be given the choice between overtime pay and compensatory time, with flexible schedules and varying hours throughout a longer period (like a month).[12] According to the Fair Labor Standards Act today, they must be paid time-and-a-half overtime today. This proposed form of “variable” compensation and hours would give workers more time and tend to save employers money, and likewise make some jobs more stable.. 

            Jobs can often be “shared,” with less immediate compensation per person; but some jobs require the stamina to be “on call” and fully responsible for their own areas for extended times (over 24-hour periods) , or else accountability for results becomes meaningless. In this respect, information systems and medicine are a bit like the military. (Medical residents tell me that in medicine, also, the prevailing attitude is “don’t ask, don’t tell”).  Many people, if they develop health problems, may lack the stamina to justify their positions with their own personal efforts. People may, in extreme cases, find themselves staying on “quasi entrepreneurial” jobs that kill them as an alternative to becoming helpless.  

            In addition, career security demanded that one put a lot of effort into self-training, off-hours and on one’s own time, to stay current on skills that might not be germane on a particular paying job but that would prepare one for the next project. An associate of mine was recently asked at an interview for a technical management position, how much of his own money he had spent on training. Sometimes, it seemed that one could spend all of one's resources now on just surviving, or just adapting, while the "richest" got richer and while technology and automation should have been raising the standard of living for everybody. However, many middle class "professionals" like me found ourselves in the situation where we were out of touch with meeting the real needs of other people through employment.

            An individual’s freedom, and control over the course of his life, will depend on how well he can meet the practical needs of others. In the workplace, this means attention to two areas: First, immediate value of one’s work, hour by hour, day by day, particularly when one is capable of jumping around from one task to another; and, second, the value that is added from commitment to one discipline, with follow through on tasks and investment in organized mastery on one area. The first phase requires as certain chromosomal daredevilness, a willingness to dig in cold into problems where others failed, and a capability of wearing several hats, even sometimes to the point of stretching the audit rules, say, on separation of functions. But the second phase ought to track with other areas of a person’s life, and stretch the person’s limits.  It suggests that a person’s whole life, even volunteer efforts, ought to contribute to an industry or profession, to the point that the person takes on the obligations of professionalism silently and foregoes personal activities which would conflict with or hamper responsiveness or the confidence of clients and subordinates. It straddles loyalty to “what I do,” with commitment to specific customers. It denies that profession can merely subsidize personal avocation or “lifestyle,” even if it unfortunately sometimes views “family” as disposable lifestyle behavior.

    

                        -06-

            I’ve tried to practice some of what I preach

 

            My  own situation as an information systems (“MIS”) professional illustrates these problems. I’ve worked a lot of places, from tiny companies to large, from hardware vendors, to development consortiums and financial institutions; I’ve talked to dozens of people about their own workplaces.

             Yes, programmers were on a sheltered pedestal during the years of rapid technological change coinciding with expanding individual freedoms. Gradually, these same freedoms, when practiced in a more Las Vegas-like fashion on Wall Street, and subsequent mergers and downsizings, led to the breakup of what had become sheltering corporate bureaucracy. In 1988, as I came back East as a merger ate my job in Texas, a recruiter said, “it isn’t like the good old days; the jobs are out there, but there are more programmers competing for them. You have to be the perfect fit.”

            So, I take the advice to heart. I eschew formal promotion into jobs that, after all, look easier to eliminate. Indeed, I send out a message that I don’t want people reporting to me - I left the one job where I became a “boss” within two months). I used to say, that was because I wanted to have all the skills that people who report to me have. Indeed, if I did I probably would remain rather indispensable. Really, I disdain promotion because supervising other people just to make more money when I don’t have a family to support, just isn’t me. It would create a conflict of interest with my “outside” and “own time” activities, like writing this book!  I don’t “dress for success” too well, either; I like dark blue suits, but I consider over-the-calf stockings as prudish. On my third job (with a computer manufacturer) as was once forced to seek and accept a transfer out of a customer site support position because a new manager felt I didn’t have a “marketing profile”  (that is, unlike my father, I don’t get a high out of selling, which I see as peddling!) He said he was forcing me to think seriously about my career, and I now applaud his candor. 

              I understand that in a salaried position, the employer makes a good-faith effort to provide adequate resources to do the job, and I must make a like effort to do the job within budget, at my own time and expense if the job takes longer than expected. I have had to stop and think about what it means to do my job, and accept permanent responsibility for the results. I’m no trainee; I’m playing in the big leagues now. I don’t make $6 million a year, but I make much more than the median for one person, and I have to account for what every change I make to a system does,  from the day it goes in, forever. Even the 1982 gay film Making Love contains a dialogue about holding people to standards of professional competence and absolute dependability.  The practical reality of my work is that I have to be present during the day, for the users, and the batch cycle runs at night, so I must maintain continuous response.  If the phone rings in the middle of the night, I must get things resolved acceptably regardless of personal discomfort or cost, or I undermine my own job. If the company pays more for computer time during the business day, I must offer to work a lot of nights (once a boss asked me to do this point blank in a staff meeting!) I must subordinate other activities to the job, and not make unchangeable plans that would interfere with my being able to respond to a problem when it is my turn to be on-call.  Hiring more people for the same responsibility but less pay per person sounds like an obvious and commendable solution, but requires enormous changes in culture; but that looks forward to a new appreciation of teamwork, and de-emphasis of the view that the workplace must be a daily open-book competitive exam.

            I have tended to perform better when I could master one system, by seeing through a major life-cycle development effort, including implementation and support. One of my superiors said, “a lot of people can code, but not everybody can implement.” In a real world, one often has to take over someone else’s work, and figure out what has gone wrong with incomplete information from a poorly controlled previous environment in which there was insufficient accountability. Particularly if one is going to become a nimble, flexible top-dollar consultant, one has to be able to pitch in relief with men on base, indeed as a right-hander facing a left-handed power hitter and a Maury Wills on first! - and one has to be able to hit the knuckle-ball; there’s no time for a formal learning curve.    

            Once, I was in a bind where, if I did not solve a particular problem and rerun a system quickly, the small consulting group which had hired me away from Texas would have lost its biggest client and been put out of business. Had I not been able to depend just on myself, my career might have ended. There are times when one must perform dependably as the last resort whom others count on.

            I sense that employer-paid perks accompanying salary, like paid vacation or out of pocket expenses or compensatory time, are rather like chess poisoned pawns; if I grab them, I may undermine my competitive position. Arguably, the employer could hire more people if we did without them.  I may resent the colleagues with families who take more advantage of these benefits - they have to - and feel I am subsidizing them..  I once worked through a New Years Day, baby-sitting a year-end implementation when my father had passed away New Years eve, because I “owned” the system. I may joke that colleagues who stay home when it snows are wimps, and remind them that minimum-wage convenience store clerks make it to work in storms and man their dangerous graveyard shifts with no military training; my colleagues don’t like to hear this. If I forsake some employer generosity - especially when there are difficulties in my own family -  I will, to put it mildly, create conflict with my colleagues. Sometimes, I will work overtime, at my own expense, to recover from “other people’s mistakes,” The attempts to make them feel guilty (and improve my competitive position) will come across as downright nasty. If you might get laid off tomorrow, why not take all the freebies you can get today? Some employers like to remain vague about questionable practices because they know the only practical way to get some things done “legally,” such as unbudgeted 24-hour nightcall coverage, is to leave vulnerable associates the impression they had better stay with it to meet their objectives. And I wouldn’t make a very loyal union member. (While working for a broadcast network in the 1970’s, I actually doubled as “scab” boom operator when a union went on strike.)  Why should I go without income when someone else can’t deal with the working conditions; the solidarity that used to give “workers” higher wages and better benefits for “the many” now seems to suggest that we can’t take care of ourselves. Still, they say, programmers are among the most abused of professionals. Interns and residents, and sometimes even hospital technicians[13], have it even worse.

            The impulse to stay on the job round the clock during a month-end, to the point that I would hang a picture in my cubicle from Steffan’s book and label it “barracks for programmers”, presents troubling citizenship questions. True, like medical internship, many professions require a constant follow through on what one has done; to guarantee a result for a paying customer, one may have to present oneself in the workplace at the scream of a beeper, 24 hours a day. One needs continuous mobility and independence. Reduction of pollution and greenhouse gases these days calls for car-pooling, public transportation, and a reduced volume of commuting. Working from home or telecommuting certain helps, but a broader question is, could the kind of job I do be shared with more people, with less compensation per person. If we all gave a little, wouldn’t we all be better off? I certainly would welcome a look at this, but many jobs like mine require availability for followup for extended periods, from someone who is willing to be ultimately responsible.   

             The shaky pedestal of my position has other problems. The requirement that information systems achieve perfection has led me to focus on small areas and a certain inertia, which interferes with learning newer, less structured and more object-oriented skills. I develop the bad habit of hanging around the job, dealing with the latest crisis, and then am unable to put in a solid, non-fidgeting eight hours the next day, and absorb new flexibilities in tackling less structured problems. One must absorb key concepts quickly if one is to avoid ruinous errors in judgment, and if, when put on the spot, will be able to answer, “yes, I can do this myself.”  Yet, I have wondered if my own preoccupation with my own thoughts, security, and comfort, and lack of commitment to others, interferes with the necessary agility and adaptation as well. Sometimes, it is better if some questions in one’s life have really been answered.

            I will sometimes be asked to take over a project which someone else has deserted, and rather than rejoice in the opportunity to learn, pout a bit on my predecessor’s “lack of personal responsibility.” In today’s fast-paced world, many people just can’t afford to hang on to their pasts; I should get used to it.   

            Sometimes, the fear of finding something wrong after the fact has led me into defensive behavior.  Like a pack rat, I will hang on compilation listings, elevation audits,  and test runs, evidence of my work,  to defend myself.  This behavior could be seen as prudent, like a doctor keeping track of his prescriptions.  Or it could be seen as dishonest, a violation of Joseph Steffan's notion of "absolute honor," because once I turn it over, I warrant that I am sure of the results I have gotten through testing.  A loss on my own grip of reality has, a couple of times, been the greatest of all threats to my own freedom. I can recall, one chilly November afternoon as I walked the streets of Alexandria’s Old Town, after brunch at a now closed but then controversial club for Virginia, thinking, I really don’t belong in “this business.” I might really have to learn to work, all right. I might have to get and do a “real job,” in this twenty-four hour world. Newspapers stories claimed that, if you work at a MacDonald’s or some such fast-food place (where you should really be encumbered by hairnets and handwashing), you really find out whether you can work. The same goes for bartending at The Midnight Sun. Former Wall Street Journal reporter Foster Winans     reports the need to dependable factual accuracy and perfect writing day after day as he wrote his column (before he fell into the 1980’s temptations of insider trading) , with limited and regimented time and resources.[14]

            But, then, I would snap back at the news, of some external or international development (such as. most recently,  the anticipatory nausea  of the Gulf War, or, earlier, the confiscatory threats of corporate raiders) would snap me back into myself.

           

                        -07-

            Less government regulation of the workplace would grow jobs

           

            The automatic reaction of politicians, whether traditional well-meant liberals or moralistic paleo-conservatives, is to pass laws forcing employers to play “fair” with all their workers. but in keeping jobs at home and in remedying discrimination.

            Existing Civil Rights laws to prohibit discrimination against suspect classes may very well discourage employers from creating as many jobs as they otherwise would. Given social relations today, it is not realistic to eliminate anti-discrimination laws with respect to race and national origin. But most employers have enough incentive to give fair employment opportunities to women that sex discrimination laws, as they are now construed, could be eliminated. Some EEOC lawsuits for “gender” discrimination have been ridiculous, as when the Hooters chain of bars was sanctioned for failing to hire male “bar girls” (in drag, perhaps).  Given employer resistance to paying higher-than-market wages and for subsidizing higher health care costs, and given the ease with which employers can simply refuse to interview older candidates,  laws preventing discrimination for age are so ineffective that they are probably counterproductive and largely encourage cynical attempts at evasion. We may develop a new ethic, where people are expected to accomplish things during early and mid career, and be prepared with savings for more erratic earnings towards the end.  A practical compromise, however, would be to leave these laws in place, but to allow exceptions when they ratified by associates (which would follow from the team concept, below) or to expand the notion of bona fide job qualification.

            Likewise, of the health care system could be divorced from the workplace (whether through an individual mandate or even through an unlucky adoption of single-payer), companies would have more incentives to hire more staff rather than overwork its “lucky” associates.  This statement does not minimize the complexity of making the health care system more efficient, or offering universal coverage, and is sympathetic with political initiatives to make existing employer-sponsored group plans portable (essentially expanding COBRA). But the fundamental point is, most people will enjoy more stable incomes if government tones down its monolithic enforcement of anti-discrimination laws, refrains from increasing minimum wage, encourages alternative health care plans outside of employment, and ends affirmative action and quotas altogether. This is a second major suggestion for economic security.      

            Remarkably, however, employers are rediscovering that their long-term best interest does mean an investment in human capital, even social capital. It may be that “democracy” in the workplace with the paystub and timeclock and ESOP share, may be a more effective antidote to instability than is the democratic bureaucracy of regulatory government.

 

                        - 08 -

            Teamwork builds bridges and a more stable workplace     

 

            In time, of course, the pendulum began to swing toward the middle.  Profits could not be sustained by our flipping hamburgers for each other. Companies began to initiate the concept of "teamwork" and "total quality management", even as they continued a more selective downsizing.  Work teams could make decisions for themselves, with less bureaucracy and "chain of command." A certain informality was encouraged.  The tendency for employees to compete with each other could be replaced by cooperation, and by a modest impulse for them to share personal values with colleagues in team “group therapy,” lunches, social situations, and even outdoor “team survival” expeditions like “Outward Bound,” echoing the cohesion concept from the military. The old paradigm of “management by objectives” would evolved into a “total quality management,” in which personal responsibility was enhanced by, rather than replaced by, team relations.

            All of this proposes a paradigm for the "new workplace." It’s largely fictitious now, and even needs legislative permission; but if it became widespread, it would have definite implications for the broader problems of individual rights. A third major suggestion for enhancing career stability is to decentralize workplace operations into self-managed teams which have considerable control over their own budgets, bonus compensation, and working hours.. Congress (as of May, 1996) has already wisely considered a “Team Act” which would permit companies to set up management-labor work teams in certain union shops.   A "work team" is formed to accomplish a particular project, which might include developing a system and supporting it after it is implemented. A person could be on more than one "work team" in a particular company.  Each team gets a “finite” budget. “Zero-sum” (or zero-based) budgeting, downloading accountability for results to teams and their associates, becomes an ironic discipline to increase overall wealth and the number of available jobs. A portion of a person's compensation is derived from the "profit" of the work team and payable only as certain milestones are met. Furthermore, the work team may reallocate portions of the "bonus" (within certain limits) among the team members as the members see fit, according to the amount and quality of work done by each member, or even according to "family" circumstances. Teams could advance “leave banking” as a way to provide compensation during otherwise unpaid “family leave.” Team members will have to realize that negligence on their part will not simply cost the company money; it will cost the other teammates personal time and money out of their own pockets.

            A scheme like this could funnel more compensation into the hands of those most "deserving," based both on job performance and other personal responsibilities, according to the wishes of employees, without the government or even the company having to dictate redistributional "policy." Colleagues are often more aware of an associate’s strengths and weaknesses (particularly in the ability to solve problems without burdening others) than is the boss. A team environment would also help employers focus on better work habits, which would lead to lower costs, fewer hours, less commuting, and better citizenship. One might even have time for volunteer work, which a few companies today (amazingly) say they expect to see.

            Also, this kind of system, with variable compensation, would give employers incentive to keep more workers during downsizings or restructuring. It would comport with increased employee ownership.  But it might require changes in tax laws (with regard to partnerships) and labor law (with regard to gender discrimination) to be legal..

            A fourth major suggestion is to increase employee ownership, and particularly to allow employees to share in the separate capitalization of sub-partnerships comprising the enterprises (and customer bases) they work). Employee ownership, often implemented today through 401K and stock option plans,  could be increased by the capitalization of satellite enterprises (with some tax-free pass-through and limits on personal liability), as a natural extension to the pre-budgeted high-performance teams proposed above. This capitalization could fund investment in training and information technology.  Senior level employees, once they reach a certain compensation level, could be required to purchase private-placement shares in these entities, in order to increase their compensation. Share “dividends” would continue for a number of years even after separation from the company, even though they would not be freely transferable. Nevertheless, Congress would have to change the tax code significantly to allow corporations to “pass through” their profits to these team sub-entities (almost like S-corporations) through these schemes.     

            So this is where we are: we can develop a system which, with more flexibility on the part of workers and less government regulation, will probably result in increased employment stability. However, the growing conflict between "single" workers and workers with heavy family obligations will have to be faced squarely. The decentralized, contingent scheme will make it more difficult to enforce anti-discrimination statues of any sort (as will the trend towards more employment in very small businesses), and employers may find it is harder to support their infrastructures and systems over time with a less-loyal workforce, and they may find it more difficult to assure themselves of properly trained and dependable professionals.

            A more decentralized, "entrepreneurial", team-oriented and employee run workplace will force unheard-of candor between individuals.  Teams will be expected to manage their own logistical and personnel problems, especially with respect to controversial issues such as "on-call" overtime needed to keep systems running. The "family" burden of a teammember (whether children, aging parents, or even a partner with AIDS) may well, at an individual level, be a valid concern when negotiated by team members. In case of an extended family resulting in legally mandated unpaid leave, the other teammebers could decide to share or bank some of their own leave or compensation.  In such a climate, secrecy or even mere muteness about sexual orientation would hardly be practical.

             Teamwork will not replace individual accountability; indeed, it may reinforce it as persons must now answer directly to their peers.  More senior professionals may still find that, since the buck stops with them, the priority and commitment which they must give to work may well limit other areas of their personal and avocational lives.

            Yet, it must also be clear that when workers are this free to run their own affairs, they will have to be trusted not to use illegitimate biases, such as race and religion (as well as sexual orientation) against each other. 

            Teamwork also calls for employers to become for forthright about the details of their connections to their employees and associates, both as individuals and as team-members, and for employers to make a bona-fide attempt at providing some long-term stability.  Employers may rightfully demand that a project or other objective be completed by a team for the money its members have been paid. However, they must be willing to spell out the rules (or empower the team to spell out the rules) concerning overruns or situations where one associate performs the unanticipated tasks at personal expense because of the non-performance or incapacity of another. Otherwise, teamwork can quickly revert back into Darwinian personal competition as the “cheapest” associate has the “power” to make precedence for everybody else. It is even worthwhile for employers to consider making the compensation of all associates (including executives) “public” among the associates.

            Suppose Jim and Linda share the responsibility for the nighttime batch processing of a mission critical system at a bank. The teller machines must be up by 6 AM the next morning. Some has to be able to respond to any problem immediately. Jim is an unmarried gay man and has a fund-raiser that evening to fight the military ban. But Linda, whose husband is overseas with the Navy, has a commitment too: her kids are sick. Maybe, complicating the calculation is the fact that Linda lives far in the exurbs, because she wants the best school system for her kids. Maybe it is snowing and it is dangerous for her to drive in. Jim, on the other hand, lives nearby in an apartment in the city and has used his disposable income on geekolator communications gear for his home PC.  Maybe there is finite money in compensation to guarantee the required result: a complete cycle, on time. Who makes the sacrifice? The government and bank take no position. Jim and Linda must work this out among themselves. Jim may point out that Linda’s family life can cause direct cost to him and point that out, and this may well get on Linda’s nerves.  In an even more market-centered system, it can happen.  In industry this happens all the time today, but salaries and performance evaluations are secret so companies tend make it up to their “performers” at raise time and nobody really sees what is going on. To enjoy more freedom and more prosperity, we will all have to become much more sensitive to how our performance in the workplace, and even how outside interests that pull on that performance can directly affect others, when the “company” or the “government” doesn’t make up the difference any more.  

            Even in business circles, there is surprising criticism of variable-pay plans now in place at 14% of U.S. companies that put employee pay “at risk.”[15] Actually, only some of the salary (properly bonus money) is at risk in that base salaries may be frozen so that labor costs truly become variable and a larger payroll can be supported; the employees own savings are not turned in for poker chips.   

            In general, flexible approaches to organizing and capitalizing work teams and capitalizing their members, should counteract this “winner take all” Darwinian mentality.. In the long run, if we can encourage companies to employ more people, even at the expense of paying them variably and slightly less, we may all be better off.

            In past generations, the “owners” of business were seen as living off the sweat of workers. Today, owners are seen as taking the personal risk that not only creates new products or services but also creates new good jobs and stabilizes the income of others.  The middle ground is, obviously, various forms of cooperative employee ownership, empowering associate-owners to make their own decisions within their own teams.    Congress and the state legislatures should consider allowing other appropriate and creative forms of capitalization of businesses by employees. Tax policy should reward holding securities or investments for longer times, rather than the quick turnaround of arbitrage; this may argue against the “flat tax” or elimination of all income taxes on investment income, generally favored in libertarian circles. Companies ought to consider maximum salaries, not in the spirit of forced collectivism, but in the spirit of both offering more jobs and in encouraging associate investment in ownership as the principle way to increase earnings.   All of the government and corporate public policy suggestions should be studied in regard to the control they allow individuals over their own work life and marketability.        

           

                        -09-

            Employer-associate relations need rethinking.

 

            The modern workplace will be a mixed bag of very short to very long term projects and commitments, only some of which involve long term operational support.  In general, workers will choose between a life of shorter assignments with somewhat less stability and security, for long term residence as "core staff" in companies to which they will owe a more obvious political and commercial loyalty.  But even the "short termers" will enjoy more opportunity and overall income security if there is some legitimate career management. "Employee leasing" companies which handle personnel functions might fill this function, as might professional licensing organizations.

            Companies will have to rethink their notions of “core staff”  (salaried executives and professionals) where they pay for continuity, long-term accountability and responsivity, and, particularly, commercial and political loyalty, as well as for the market-basket value of the “tasks” actually completed. In recent years, much white-collar nominally “salaried” employment has become less stable than consulting, if one already has a network of many clients.  The stability of a stable paycheck from one source ought to consort with a personal commitment to an organization’s goals. Stable, salaried professional employment arguably creates obligations of loyalty and priority which, like family, might foreclose certain conflicting forms of self-expression. But this is not fair to the associate unless there is some consideration that promises the associate more stability over time. Employers need to consider various career paths that justify long-term investment and increased compensation, such as moving into  business decision making, supervision, or becoming a technical “key” or “asset person” who is relied upon as a last resort to solve difficult problems at all times. Employee “moonlighting” and violations of non-compete clauses and outright conflicts of time availability and interest are likely to become more nettlesome without voluntary measures by both employers and associates to stabilize the workplace.

             Even more troublesome, in the era of easy self-publishing and Internet discussion boards, is the possibility of a senior associate’s expressing political views which, if enacted, would be damaging to an employer or its business base. A tobacco company could hardly tolerate one’s of its executives attacking cigarette smoking in a local letter to the editor. Yet, restriction of employees’ expressing their own views could have to effect of keeping government a vehicle of serving special interests.   A sensible policy is to require associates who have others reporting to them to be silent in public on their own views on anything. This would be fair if companies promote into management only key, highly skilled people and dedicated people for whom there is obvious mutual commitment. This is an unexplored area;  state laws and court decisions have developed the notion that employers may constrain expression of political opinions or other outside behaviors when such constraint does not harm “public policy,”  as would discharging someone for “whistleblowing,” or for discretely (without personal gain) expressing opinions on a legitimate public issue, or performing any illegal cover-up for the company.

             Too many managers in the past “got there” just because they “had” to get promoted, under the “Peter Principle”; they often were just supporting a lifestyle and had nothing in particular to accomplish in their positions. A fifth suggestion, then, is for companies to re-assess the commitments they want from their core-staff  associates, and, in return, offer these associates contracts for stable employment.

            Attitudes toward automation and rapid change provide still another opportunity to improve the well-being of careers. A trend towards standardization and modularity of processes disgruntles some associates, who may come to believe that by doing things their own ways, they can build their own “turf” and an artificial “job security.”  Automation and productivity tools will force associates to keep learning and stay on their toes, and to be prepared to move around, but it will eventually provide them the opportunity to do “their own things” with their lives.       

            Another controversial topic, especially in my own area of information systems, is professional certification and licensing.  This might be done by organizations which represent the community interests of employers and associates. These groups would set standards of professional certification. They could also assist with a career management function, which would both give the individual guidance in managing his or her career and give the employers or clients reassurance of competence.  Career management agents would ascertain that professionals were maintaining their skills, hopefully with practical hands-on lab tests and periodic counseling reviews of career progress, not just the easily graded multiple-choice tests. They could also encourage companies, ultimately in their own self-interests, to allow their new associates more time and resources for learning curves.

            Career management agents could also enforce "social policy" in place of the government, giving at least an appearance of libertarianism and freedom from government "interference." The contingent nature of the workforce would discourage mandatory drug testing just as it would hinder enforcement of anti-discrimination policy or even informal "affirmative action." But career management agents could develop the methods to enforce all public policy objectives, even credit-worthiness.  They could negotiate additional recommended, even if voluntary, policies on their members (both professionals and employers) regarding discrimination, including sexual orientation, and also methods to reconcile the needs of capabilities between persons raising families and persons living more autonomously.

            “Career management agencies,”  together with medical testing labs and credit reporting companies, might create the appearance of a “shadow government” which could be just as oppressive and politicized as the real one. There is precedence for private associations to have considerable legal powers  already. For example, the Software Publishers’ Associations can fine companies which break licensing agreements, just as condo associations can fine homeowners. But there could be a multiplicity of companies and associations that perform professional monitoring and setting industry professional standards, leading to competition which should shake down to social justice.  Government would still have to regulate the testing and information collection and distribution procedures of these agencies to ensure they  were reliable and allowed appropriate rebuttal by members.

            All of these developments, such as the recently “entrepreneurial” character of the workplace and new notions of career management and certification, will lead to a deepening of notions of professionalism,  a certain “selflessness” which now will include a willingness to recognize one’s boundaries. A lifeguard at Bally’s Fitness expresses this with a T-shirt, “know your limits.”  Expansion of explicit standards of professionalism is our final suggestion for improving income security.

            In short, people can make their careers and incomes more secure if employers and associates alike will work together to make compensation more closely correlate to the value of the work done, and if both sides are prospectively upfront and candid about their mutual obligations. Rather than regulating companies arbitrarily, we can empower people to become more accountable for their own personal contributions to the bottom line. We would have to rediscover our personal freedoms within the constraints of what we could actually deliver to other people.

 

      

           

                        - 10 -

                         The workplace should distinguish between discrimination and privacy invasion

 

            When I cross the Rappahannock River, driving South on I-95 towards Fredericksburg and Richmond, the first bit of humanity is the a large shopping center with a vanity tower, that reads, “Cracker Barrel, Old Country Store.”  And it would be a morals violation for me to eat there. 

            The human resources department of Cracker Barrel Old Country Stores decided to start January, 1991, with a real New Year's resolution. Behind closed managers' doors, it circulated a crackdown on gay employees as official policy: "It is inconsistent with our concept and values, and is perceived to be inconsistent with those of our customer base, to continue to employ individuals in our operating units whose sexual preferences fail to demonstrate normal heterosexual values which have been the foundation of families in our society."[16]

            In the ensuing months, a number of Cracker Barrel employees were indeed summarily dismissed. On the form sent to the Georgia unemployment office, the company wrote, "employee has violated company policy.  Employee is gay."

            Very few publicly held, commercial employers make such a brash, public effort to track down and fire "gay" employees. (My father’s dire warnings in 1973 about my New Jersey employer hiring private detectives to follow me around in New York City were a bit like the playing of Stravinsky’s Rite of Spring in the cheap crime thriller movie Jade.) Indeed, after the gay community survived the worst paranoia in the early days of the AIDS epidemic, employers continued to make progress along a path started in the 1970's, towards regarding an employee's adult private sexual life as not a valid personnel issue. Often the attitude seems to be benign neglect; conservative employers usually see this as a subject that need not be discussed. But, since around 1990, a surprising number of employers have been willing to include sexual orientation in their stated non-discrimination policies, and a very few have actually allowed full domestic partnership benefits (even optional life insurance) to gay men and lesbians.

            Nevertheless, the very  wording of Cracker Barrel's policy shows, in hyperbole, some of the nature of corporate discomfort with the "gay" issue. "Failure to demonstrate normal heterosexual values..," in fact, would regard employees who "fail" to take on the responsibilities of marriage and raising children, as non-participants in society (like draft-dodgers?), or certainly in the best interest of he company. Curiously, this policy admits that there is such a distinct lifestyle “choice” as heterosexuality, Masters and Johnson style.

 

            Other workplace problems are illustrated by a now notorious small-business case, DuMuth vs. Miller[17]. In 1985, Dan Miller had gone to work for a tiny Pennsylvania accounting firm owned by Don DuMuth. Mr. Miller was required to sign a non-compete agreement which covered dismissal "for cause." Out of a sense of prudence, Mr. Miller had asked DuMuth to draw up a list of "causes," and the last of these was "homosexuality." In the next several years, Miller both helped DuMuth grow the consulting business and "came out" to himself. In 1990, Miller, speaking for a local gay rights organization, talked about anti-gay violence on a Harrisburg TV station (he had not known he would be broadcast).  A few of DuMuth’s clients mentioned the episode, but none were disturbed by it. But, DuMuth felt he had to keep to his “word” to defend his credibility, and a few weeks later, fired Miller.  Don Miller immediately started a competing accounting business and took away many clients. DuMuth sued for violation of the non-compete clause and won a $100000+  judgment.

            The most obvious problem is whether a small business owner should be able to exercise his "common law" right to "discriminate" against someone whose apparent behavior he or she disapproves of. To answer "no," is to say that private, intimate sexual practice should have a measure of protection from the State, the way the practice of religion does. After all, a "fundamentalist Christian" might object to the practice of Judaism, but use of such practice for discrimination [except in narrowly excepted circumstances] is against the law.

            A second problem, at least with this specific case, is the “employment contract” itself. The word "homosexuality," at face value, describes a state of mind, not behavior, and cannot possibly be part of a valid contract. But common law would probably interpret the contract as meaning, that the employee must avoid behavior (and public statements) which a "reasonable person" could construe as evidence of homosexual orientation. This sound a lot like the military's "rebuttable presumption" provision in its "don't tell" policy, except that it might even be more restrictive. A public statement would not even have to show a "propensity" to engage in homosexual acts; it’s associational context would merely have to suggest the likelihood of homosexual interests and orientation. DuMuth, after all, did not actually state his own sexual orientation in the “pop quiz” television broadcast; had he been in the military, his statement would not have met the legal definition of “homosexual conduct.”  But during the trial, DuMuth's lawyers asserted that Miller had "gone public on a controversial issue that reflected poorly on the firm."[18] Indeed, sometimes employers may feel concerned about customer reaction to an employee's public statements, even if these statement are "morally right"; but in this case, Miller’s former clients obviously didn’t care. 

            And the last issue is the "intimacy" of small business. This is likely to become a bigger factor in the future as the workplace becomes more "entrepreneurial" and team members share with each other. DuMuth and Miller often shared hotel rooms to save on money, an imposition on privacy that would never be acceptable to me when traveling on business. (Yet, my first employer in 1970 put people up two or three to a motel room during orientation and training; I was lucky that my "roommate" didn't show up but stayed home with his newlywed.) Apparently, small business can share some of the problems of the military.

            A third case that is among the most notorious occurred in 1991 when Robin Shahar had received an employment offer to be a prosecutor in Atlanta. About the same time, she publicly announced her intention to be publicly committed to another woman. When the attorney general found out, he withdrew the offer. At the outset, this case is egregious because it occurred in the public sector. Shahar sued and lost. The county maintained first that her publicly declared lesbian relationship implied a high probability of her unprovable violations of Georgia’s sodomy law, and, moreover, that the credibility of the prosecutor’s office would be damaged by public knowledge of her lesbian “marriage.” The state court, while recognizing some freedom of association, agreed[19]. For practical purposes, an outcome like this would be impossible if the United States military had not already paved the way with its ideas about “presumption” and “order and discipline.”   Recently, this decision was overturned in Federal District Court.

            A particularly disturbing case appeared in Cincinnati  in 1995 with another attorney, who was fired after he named his partner on a life insurance policy provided by his law firm, and, more to the point, when he worked for opponents of Cincinnati’s Issue 3 (to prohibit anti-gay discrimination statutes). The law profession’s “Code of Professional Responsibility” would suggest that “lawyers should not be fired for clients they choose to represent,”[20] regardless of the political leanings and connections of a parent law firm.

            Over the years, I would learn of numerous other people fired for their private lifestyles. A Realtor in Dallas told the Dallas Gay Alliance in 1982 that he was dismissed for certain “lifestyle habits.” A bartender at Boots and Saddle (and avid Yankee fan) on New York’s Christopher Street told me in 1978 that he had been fired from a diamond shop when private investigators found out he was gay.  

 

                        -11-

            The workplace is fairer to gays these days, but there are many problems.

 

            Government, with the most obvious examples of the uniformed military, law enforcement, and teaching, has been the main offender over the years in setting examples encouraging discrimination against homosexuals. In the modern era, purges of gays from government employment escalated after World War II with Cold War scare, even in the “Democrat” Truman Administration, around 1950, and were reinforced by President Eisenhower’s Executive Order in 1953.[21] Blatantly illegal police raids of gay bars and the publication of names of persons present were commonplace; this led to a period where the underworld controlled many such establishments. In 1957, Dr. Franklin E. Kameny, one of the century’s most prominent gay activists, was fired from his government job as an astronomer after he was “found out,” apparently after a previous partner had “named names” after the partner’s arrest in a public sting. In 1965,  Dean Rusk gloated in a television interview, “when we find homosexuals in the State Department, we discharge them.”  Even in the 1980’s, some police departments (such as Dallas) routinely asked applicants on polygraph examinations about “illegal” homosexual acts. In the 1970’s, the Federal government began to reform its practices with civilians, although only slowly where security clearances are involved. But even recently, in 1991, the Navy tried to discipline a civilian employee and former Marine, Tom Swann, for publicly advocating lifting the military gay ban.

            As a whole, in technical fields like mine (as well as higher education, entertainment, and law) there is now much less overt discrimination in either civilian government or private industry,  compared to four decades before. Employers in these areas seem to value the independent thinking and overtime malleability (and geographical mobility) of the single and unattached. Furthermore, “programmers and analysts have the lowest social need strength if any of the five hundred occupations that have been measured by the Job Diagnostic Survey.”[22]  A recent San Francisco Examiner editorial, in fact, chronicles the gains in some corporations, ranging from domestic partnership benefits to opening inviting gay spouses to company social functions. “Here’s a new one. Corporate America is at the vanguard of gay and lesbian rights. Corporation? The same folks who brought you mass layoffs and glass ceilings? Believe it.”[23]  Perhaps the downsizings have been good, competitively speaking, for gays, by emphasizing short-term job performance instead of social convention and “loyalty.” The same newspaper piece relates the anti-gay boycotts and a humorous incident where a straight man “wet his shoes” moving away from an open gay at a urinal (as if seasick on a Navy ship).

            The gradual improvement in security clearances (and private bonding) since my time in defense employment, no doubt largely due to the efforts of groups like High Tech Gays, has also helped.  Police don’t raid gay bars today and print names for employers to see. Generally, private detective agencies like the notorious Fidelifacts in the early 1970’s rarely code their databases for “high class fairy,” and intrusive investigations of employee’s private lives are relatively uncommon now, whereas once they were routine when employees had to be bonded. But the rosy picture in the editorial quoted above seems exaggerated. In sales or in some blue collar areas, discrimination against gays or “non-conformists” may still be more common, as it may still be for women in executive ranks. A review of surveys conducted between 1980 and 1991 showed that reported that between 16% and 44% of gay men and lesbians had experienced discrimination in employment. A 1987 Wall Street Journal survey of Fortune 500 executives reported that two thirds were reluctant to give an executive job to an openly gay person. A 1992 survey of 1,400 gay men and lesbians in Philadelphia showed that 76% of men and 81% of women would not “tell” at work.[24]

            Customer perception of a business’s associates may become an incentive for discrimination. Sometimes prospective fear of AIDS is a health insurance or customer perception issue.  In some fields, particularly with a marketing or public relations emphasis, carrying on the public appearance of conformity and the use of family as an asset on the job, or the public’s perception of a celebrity’s personal life and values,  is much more an issue than in mine. Official human resources wisdom says that marital status and number of children don’t belong on resumes, yet, under the table, many people include them, expecting more favorable consideration. It shouldn’t be illegal, but it is wrong. Rarely, a “family man” may be perceived as more “deserving.” When a friend was laid off from a teaching job in a private school in Brooklyn in 1975, the proprietor told him that he was picked because he was single and wouldn’t be hurt as badly by a layoff as a man with a family to support. My layoff from my first position after one year was probably exacerbated by my unmarried status and rather obvious homosexual social interest (even though a subsidiary of the company hired me back two years later, when the interviewing manager said, “I don’t care what happens in your private life, but I don’t want your personal problems to lead you to bother other people in the office.”)  When I was interviewing for jobs in Dallas in 1988, it seemed my never-married status was a serious hindrance; it was not that way at all when I came back to the East Coast. A apparently homosexual male at my age or who is still healthy after years of the epidemic probably knows what he is doing and is of little likelihood to burden a future employer with an AIDS claim. But divorce of health insurance from the workplace (generally not popular with libertarians) would have the benefit of reducing the incentive for discrimination, as well as for monitoring employee’s alcohol, tobacco, and even drug habits.

            Despite the recent (and very reversible) advances, security clearances remain particularly troubling. My young adulthood was heavily influenced by security clearance issues because I was (accurately) perceived as "gay." The attitudes of private employers, especially defense contractors, can be heavily influenced by government and military policy towards clearances. It used to be that employees thought to be gay were interrogated in much greater length regarding their sexual activities, and that their clearances were held up so long that their employers couldn’t afford to keep them benched. Some agencies, such as the CIA, would not give clearances at all. Recently, President Clinton, in revising security policy in the wake of the Ames case, has indeed ordered that sexual orientation must not be a factor which precludes the granting of any clearance. However, the order still needs "perfecting": it does not clearly protect private homosexual “conduct,” it does not always provide for representation by counsel in the earliest stages, and it does not undo an ancient order concerning "sexual perversion." (Presumably, homosexuality per se no longer constitutes "perversion.")[25]  Recently, Representative Dornan proposed rolling back Clinton’s initiative and subsequent Executive Order; this raises the possibility that once again civilian employees may be unable to get many clearances. A reimposition of “asking” in the military ban might also lead to an effort to deny gay civilians higher level clearances.   This is another clear example of where the military ban spills over into civilian life.

            The security clearance issue brings forth another phenomenon that affects everyone: people can lose their jobs over the "appearances" created by their behavior, as well as by provable facts. One is expected to behave in such a way that a "reasonable person" would not interpret as suspicious.  This may be part of a fair obligation that goes with a well-paying job.[26]       

            Another vocational area with similar problems is teaching, in both private and public schools. In Dallas, I knew a grade school teacher who limited his self-outing to the mild mannered statement that he had “gay friends.” In 1993, a history teacher named Rodney Wilson got into trouble in the school system for telling his senior high school students that he was gay while he was teaching them what had happened in the Holocaust. “Conservatives” don’t want the kids to know that homosexuals can actually live productive lives. But twenty years before, there had been a case where a teacher was fired for not revealing his affiliation with a campus gay organization while in college; the teacher was not even allowed to keep this association private. In 1978, an initiative was introduced to ban gay teachers in the California school system (even closeted ones) with the same excuses that the military uses. It failed. But on February 29, 1996, after Salt Lake City had closed down all student extracurricular activities in order to stop a gay club, the Utah legislature passed a bill that bars teachers from “promoting illegal conduct” and “from engaging in any activity in their private lives that would undermine the morals of children or public confidence in schools and create a significant disturbance in the schools”[27] (that is, don’t tell). School authorities should be able to control what is said in the classroom, but not to regulate teachers’ off-duty associations or private behaviors.

            A third particularly sensitive workplace situation may involve company blood drives. In one occasion, a coworker who was organizing an office blood drive actually asked me if I was going to give. I was put in the position of explaining that I was disqualified from donating blood. (This is “telling.”) Companies should not publicize employees who give blood, or encourage them to wear stickers in the workplace advertising their gift. Blood collection agencies such as the Red Cross should not give employers the names of employees who signed up or who did not. I have known of cases where HIV-negative gay men have gone ahead and donated blood anyway, just to avoid attracting attention to their ineligibility.

            Still another notable workplace situation concerns professional advertising, particularly among doctors. In some cities, physicians advertise themselves through referral services such as “First Call,” which gives out, not only professional credentials but also gender, age, and family status (sometimes including the number of children) of various member physicians to callers.

 

            ENDA: An Employment Non-Discrimination Act and a counter-proposal

               

            In June, 1994, Senator Ted Kennedy introduced Senate Bill 2238, his proposed Employment Non-Discrimination Act (ENDA). This Act would prohibit employers from applying "different standards or treatment based on sexual orientation," and from discriminating on the basis of sexual orientation of the employee or of individuals with whom the individual is believed to associate. The bill does NOT require "affirmative action" outreach or quotas, and it does not even regard "disparate impact" as a violation of the Act (as disparate impact works with race). The bill exempts the military, religious organizations and small employers. A similar bill has, in May, 1996, just passed the House of Commons in Canada with relatively little opposition, and similar laws exist in a number of European countries.

            A Federal non-discrimination Act to protect homosexuals, if passed, would seem like a dream come true. There is a sloppy public perception that the military and perhaps law enforcement and security services ought to be able to exclude gays, but, as compensation, the general private workplace should be forbidden from any discrimination or different treatment at all. But it is not so easy to separate various areas of employment according to sensitivity or living conditions, and it is unrealistic to allow the government to discriminate against a population, setting an example which it then turns about-face and forbids private society to notice. It doesn’t work that way.     

            There are some definite flaws with the bill, when viewed from a "libertarian" perspective. First, it is predicated on the finding that gay men and lesbians form a "discrete and insular minority." Second, it seems based on a nebulous idea of "discrimination," which is very difficult to prove (at least statistically) with such an "invisible" minority, although the negation of "disparate impact" seems to be an attempt to address this objection. Third, the bill does not seem to recognize the decentralized, "entrepreneurial" reality of the modern workplace, which makes the concept of formal “discrimination” much harder to recognize. And fourth, the bill does not detail with the specifics of how employee conduct (on and off duty) might affect the conduct of a business. Since it exempts small employers, it probably does respect the right of “private moral judgments” to be exercised by individuals (as opposed to larger business entities) in situations where they have put up their own money. Since the workplace is becoming more entrepreneurial, the significance of “micro-employers” (even like DuMuth, above) becomes larger.  

            So I would like to propose a more carefully tailored "model bill," (preferably implemented at the Federal level) centered around an implied contractual relationship between employer (or more than 10 people) and associate, regarding acceptable behavior by each:

            (1) "Sexual orientation" refers to an individual's personal choice of adult significant other(s). It also includes statements as to one's choice or preference when made outside of work or with appropriate discretion.  It does not, unto itself, imply illegal conduct.

            (2) Employers may not ask the sexual orientation of prospective or current workers or contractors at any time. Employers may seek information that is factual and verifiable, such as prior arrests or convictions, credit history, and marital or family status. Employers may ask about membership in clubs or other off-work activities, but not specifically about membership in organizations dealing with sexual orientation. There is no exception for the type of employer, not even a religious group, or day care center.[28] If ever available, genetic tests to discover sexual orientation may not be used.

            (3) Employers may not penalize workers or contractors for simple statements of homosexual orientation, as long as these statements were not made in inappropriate circumstances (as below).       (4) Government (Federal, state, and local) cannot interfere with a business’s policy to offer or not to offer benefits to domestic partners (of the same or opposite sex, married legally or not)  of an associate. However, the provisions of the Family Leave Act, providing for unpaid leave for illnesses of “legally” immediate family members will not be changed.

            (5) Department of Labor rules forbidding employers from establishing different base salaries based on marital or familial status are repealed. When employers intentionally pay a different base salary or provide a different time-off benefit or on-call requirement based on family or marital status, all employees must be told in writing. Employers may permit employee "teams" to set up their own rules regarding bonus-sharing (even the awarding of partnership shares) or vacation or leave-banking, and employees could consider family status in making their own determinations within a group.).

            (6) If associates are required to be “on call,” contingent availability requirements must be defined specifically in terms of results to be obtained, response to be made (such as within 30 minutes by dialup from beeper or cellular contact anywhere in a geographical area), or both, and the number of “on site” hours that the employee must report must be reduced by at least 5%.  The total number of on-call time required of any associate must not exceed 50% any one month.  Employers may modify on-call requirements for an associate based on responsibilities for dependents, but must make these exceptions public to all associates.  

            Other points do not represent a change in established policy to date, but should be stated:

            (7) Employers have wide latitude in defining conduct that is appropriate on their premises.  This includes protracted discussions of a personal nature, dress code, the wearing of insignia or political buttons (even the display on automobiles on the employer's property), and the reading of non-business materials on company time or property. The employer is not required to regard family-related personal discussions as equivalent to other personal matters.

            (8) Employers may make reasonable rules concerning off-duty behavior in such areas as (1) criminal arrests or convictions, (2) commercial or political conflict of interest. "Conflict of interest" may include statements made to the public media that contradict the company's best interest. However, public identification of one's personal sexual orientation (as regards to relationships between consenting adults),  marital status, personal associations or other clearly personal matters (without further expressing political viewpoints), are never viewed as germane to a company's legitimate commercial or political interest, and is not considered "presumptive" evidence of possible criminal behavior.

            (9) Current provisions of the Americans with Disabilities Act, and their interpretation with regards to HIV or other infections, or to genetic test results, remains in effect. (The Act should  be strengthened to protect persons with unfavorable genetic test results).  However, employers may consider physical stamina (which might be influences by HIV status, overweight, blood pressure, etc.) as a legitimate job requirement when the ability to provide 24-hour "on call" operational support is a legitimate operational requirement. Personality traits should not be considered “disabilities” under the ADA.

            (10) Access to sensitive information is never predicated on sexual orientation. However, it may depend on an assessment of the reasonableness of a person's conduct given the circumstances.

            (11) The notions of "employment at will" and “right to work” are not changed. Employers may not discharge employees or contractors "for cause" according to the provisions of this rule. They may, however, discharge "without fault" when they make an independent finding that the associate’s employment is no longer in the best interests of the company. Even so, such a discharge is actionable when there is evidence of an individual (not statistical) nature that the discharge took place merely because of the sexual orientation of the individual. Employers may design enforceable employment contracts in which they guarantee a term of employment and due process in consideration for specific levels of performance or observing specific rules of conduct and political or commercial loyalty; however these contracts may not mention private behavior of a personal nature or public acknowledgment of such behavior, as in (8) above.  

           

            The general purpose of this suggested legislation is to allow associates and employers a huge range of flexible and economically desirable arrangements, as long as each party understands its obligations and is held to them. Only the most egregious invasions of privacy, in its most intimate areas, are addressed by law; a viable free market (and flexible competition) is expected to prevent most abuses. 

            This proposal brings up several controversies. First, the employee or worker is to be protected from intrusions by a "corporate" (or partnership) employer, yet may be expected to share more of personal substance with other teammembers in the workplace than has been expected in the past. This willingness is part of a new flexibility which is appropriate for bringing more stability and more prosperity for everyone. Not only might "teammates" become more knowledgeable of one another's domestic affairs; they may also know each other's compensation (previously a taboo subject). The suggested variable compensation scheme might well result in person's with "family" responsibilities making more (although caring for a lover with AIDS could be regarded as "family"); this would contradict the automatically politically correct, "equal pay for equal work."

            In fact, I am proposing that employers don't have to treat "homosexuals" with theoretical equality on other workplace conduct issues. They could ban bringing in The Washington Blade[29] but not The Washington Times, into the office. They could allow employees to take emergency time off for immediate family members but not for "significant others." To force employers into absolute theoretical "non-discrimination" on such immediate conduct issues would force them to regiment the entire workplace on such matters as newspaper or coffee at the desks. The notion of absolute equality in the workplace becomes a useless abstraction.

            If a genetic or biological basis for homosexuality can be proven in science, would the case for ENDA, or even a stronger generic law patterned after race, be strengthened? Again, the problem is the law would be trying to stop “discrimination” on the basis of behavior, and this is extremely difficult to do even-handedly. If such findings became known, even fewer mainstream employers would countenance discrimination, anyway. But employers (and insurance companies) must be forbidden from trying to “find out” such information. 

            “Discrimination” can come up with regards to compensation and time off, despite a company’s best efforts, because of differences of family structures and responsibilities among associates.  Projects or systems requiring a great deal of overtime and "on-call" support may be harder on people with "traditional" families.  Of course, such job responsibilities can limit one's social, cultural, or political life outside the family as well. The decentralized teamwork approach is the most practical solution to these problems.

            Some employers have practiced deliberate an anti-matter “discrimination” against “straights,” mainly women who become pregnant, particularly in “at will” states. This is against Federal law only for larger employers.  Such employers have claimed prospectively[30] that child care responsibilities will interfere with the workload and burden other employees with overtime.

            A few “conservatives” have urged changes in public policy so that employers may compensate heads of households (usually, this means men supporting single-earner families with children) more than others. Henry Hyde has proposed that Congress overturn a Department of Labor regulation which apparently has “the effect of forbidding employers from what paying what used to be called a ‘family wage.’ In other words, paying more to a family breadwinner, in recognition of the fact that he or she has responsibilities a single worker is less likely to have. This used to be a commonplace practice, in the days when children were looked upon as assets to the community rather than as liabilities.” [31]  I have experienced a variation of this; on my first job, in 1970, married employees were offered  a much larger spending allowance when they traveled out of town on training assignments, even if they did not bring their spouses. Hyde also advocates reducing the Social Security tax on a worker that has dependents, to encourage having more children. I showed his article to the Human Resources Vice President of a major financial institution, and she just laughed. For one thing, employer-paid health plans already cost employers more for breadwinners than singles; the “family men” just don’t get to take that extra consideration home. Another conservative writer recently proposed a mix bag, where state of Federal laws might forbid the hiring of men or women (that is, “one breadwinner per family, but on a non gender basis”[32]) whose spouses already earned high incomes (a pretty unenforceable proposal when one considers the instability of a lot of high incomes) but then backs down by writing “if this proves too draconian, employers might at least be allowed to give preferences to employees whose spouses do not have high incomes or to discriminate every so slightly against those whose spouses do.” [33]This will make gays and lesbians stick out like “sore thumbs.”  Or perhaps it would (if backed by any government coercion) effectively discriminate against those who are legally married!  

              The “family wage” can be partially and indirectly implemented in time-off policies. Generally, progressive employers are quite permissive about allowing time-off for family problems, but insist, as policy, that associates must use allowed paid vacation or personal or sick leave. Many employers are actually becoming less generous with paid wedding leave. Unstated is the “presumption” that healthy single employees may often make less use of time-off benefits than their family-centered colleagues and may even have to work some overtime for their colleagues; however, if they suddenly need the time, their “premium payment” of faithful attendance and overtime will be returned. In today’s competitive climate, it is unlikely many businesses would actually want to compensate associates differentially on the basis of family status. An employer, however, who made the effort to stress workplace efficiency by having more workers (maybe less pay per worker) work fewer hours with more scheduled shifts, conceivably could actually save per-employee costs from differential compensation and therefore afford to increase head-count. Today, decentralized, self-managed teams really will be a much better way to restore the equity conservatives like Hyde want, without the government’s involvement (except that government has to permit it.) But, there are plenty of examples in the past of practices like those Hyde suggests. In the 1970’s, the Motel 6 chain would recruit only married couples to manage its (largely rural or exurban) motels, claiming that “running one of our motels is not a one-person job.” The 1950’s sitcom My Little Margie featured an episode one time on the notion that Margie’s boyfriend “Freddie: would have to get married before he could be hired into a job he wanted, and this led to the usual opera buffet of comic plot twists.

             True conservatives would resist such government-sponsored employer meddling and social engineering in compensation or benefits; they would see a flip side in “family values.” That is, if a person is intentionally paid more for the same job of given a preference because he has a “family with children,” then single people and maybe childless couples are helping to support that person, who is now depending on others to help support the children he or she “chose” to have. Yet, children are supposed to be an investment, a societal human resource. Are they such, or are they really only the responsibility of their parents? One could carry Darwinian ideology to an outer limit: if family (particularly male-headed) can always take care of its own weakest members, there is no reason for employers to spend extra to accommodate its associates’ special needs.    

            On this point, a common phrase among gay activists supporting gay marriage has been “equal pay for equal work.”  Previously, this had been demanded for women (equal pay for “comparable work”), to which social conservatives like George Gilder would claim, men need to make more than women because they use their extra income for “non-rational” purposes, to court (no going Dutch!) and eventually marry women. Gay activists praise companies that voluntarily offer spousal benefits to “domestic partners.”  “Conservative” lawmakers in Texas and Florida have raised stink when Apple Computers and Walt Disney offered these benefits. The point is overblown. Companies which subsidize their employees’ health care do spend more on married employees with children (for the same salary), but employees in most companies must make heavy copayments for spousal and family coverage anyway. Were health care to be taken out of the workplace, the pressure to pay heads of households more would really become obvious. But companies should be allowed to do what they want in this area, according to their desire to retain the best associates, without influence from government. The possibility of paying “single” associates less in areas of moderate demand may increase the total number of jobs available.

            The most ‘family friendly” possible approach to wages might indeed be to pay a premium to heads of household with young children (as opposed to college age), even as this would (now, often illegally) increase disparate treatment against singles and against older workers.  Apart from an indulgent desire to implement a social agenda, would any company do this out of real self-interest? It probably could, through the team concept.

            All of this revisits pretty heavy personal territory. If I am deliberately paid less, or expected to work unusual hours for the same pay, because I don’t have a family to support while a teammate does, then my life is less “important” than is the colleague’s. Maybe it is, unless I excel in something as a person. That is the way I feel.

            But we can turn this upside down. Since many larger companies would still prefer, on paper, to pay the same salary regardless of lifestyle, even if the law permitted otherwise, single people like me are often expected to do more of the beeper duty “under the table.”  If we are real “professionals” we won’t ask to be paid for it (and don’t have to be when we are “salaried”), and we may indeed take comfort in believing we are helping out and in encouraging a climate where there will be more jobs. But we may be asked to keep quiet about it, to prevent friction or conflict (or unintended lawsuits for discrimination) in the workplace and especially to avoid disturbing confrontations with others who don't want to worry about their own family responsibilities; after all we may be setting an example which others will feel put upon to follow. Keeping quiet when you are silently being discriminated against is essentially, “don’t tell.”  It’s not good for the self-image. Others may not realize their families are being subsidized by “sacrifice” of the uncommitted. The company can deal with this by larger raises for “us” or by insisting on paying expenses, all of which could reduce employment over all.  The friction could be dispelled if the social climate encouraged complete honesty about our personal lifestyles and different perspectives on commitment to our work or to the company. “Don’t tell,” perhaps motivated by the idea that government should protect families from facing change, does hurt the bottom line and reduce opportunity.[34]

            ---                           

            The general approach of all of these suggestions is that government get out of the business of over-regulating the workplace with respect to many forms of discrimination. Government should instead guarantee reasonable protection of privacy and dignity of all employees and government should not itself encourage discrimination by criminalizing unprovable private acts (particularly consensual sex). In this kind of climate, most employers will want to treat gay men and lesbians fairly as long as they remain good associates. This libertarian approach may not be as successful with other more “obvious” minorities where discrimination is easier to prove and longer in standing. Some progressive companies today recognize sexual orientation as a “diversity factor” which should not be an influence on personnel policies, compensation, or promotion (any more than should religious practice), while at the same time these companies state that such “diversity factors” form a superset of the people categories specifically protected by Civil Rights law and even by disparate impact and affirmative action.

              Libertarian philosophy suggests also that private business owners should be able to use their own property to advance their own social ideas, whether right or wrong.  And maybe they should, as long as they don’t trample on the fundamental dignity or privacy of employees, and as long as they give out their rules clearly in advance. If I owned a company, I would want the right to insist that my associates remain immaculate in their own personal financial and credit histories; I would fire someone who walked on a mortgage just because the house fell into deficiency. But it may difficult to determine when bosses like me have crossed the line. Maybe another homespun employer would refuse to hire a woman who had ever had an abortion or hire anyone who had worked for a tobacco company. A few employers (such as a brokerage house pilloried on ABC 20-20) have actively discriminated against women, claiming that they belong at home (whether potentially pregnant or not).  Legal prohibitions on "discrimination" on an area of subjectively assessed values and behavior, and even on innate characteristics that bear on these values and behavior, are likely to be unenforceable. It is better to focus on tangible agreements on appropriate conduct, decentralization, and common sense. In today’s economy, someone who loses a job because of an employer’s unusual bias or intrusiveness will generally find another one if he or she really is good on the job. What gays and lesbians need, is to eliminate government stigmatization of us, and to keep a truly free market functioning so that employers really need the best people.

            The notion that a person's "appearances" matter in business is the foundation of "employment at will."  Generally, an employer may terminate employees "for no reason" without prejudice (without interfering with collecting unemployment and without giving bad references[35]) which the employer believes that the employees conduct or even apparent “associations” are not in the best interest of the company or raise reasonable questions about trustworthiness.

            Fair treatment of associates in the workplace evokes issues of both integrity and personal privacy. The general principles of reasonableness and minimal governmental intervention (limited mostly to issues of fact) ought to apply to other controversies involving employee privacy, especially concerning “off-duty” behavior, statements, or associations, or even moonlighting. Employers should be allowed to make detailed rules concerning Conflict of Interest (Appendix 12), and to prohibit fraternization. They should be allowed to test for substance abuse (even legal substances if they can impair work or safety) provided they use tests that meet established criteria for specificity and sensitivity. They should not be able to use polygraphs (even in government), unless lie-detection technology improves substantially in its reliability (which might be possible with voice-stress technology or even something like Holter monitoring). They should be allowed to hold associates to strict standards of financial responsibility and creditworthiness.

            And companies need to consider what qualities they want in the long term “core staff” that will grow the business over time. Therefore, no  person following such a career can lead a life in psychological secret forever. A person’s interests will, at some point, have to meld with those of others loyal to a common base of customers. Even though the acts of sexuality are private, the personal values - what one values in other people - become an expression which is eventually shared with others in any team environment. Again, “don’t tell” just doesn’t work. When gay people feel that they must keep much of themselves “private” from colleagues, they may not develop the visibility to keep the confidence of peers in a competitive workplace. “Don’t tell,” even if unarticulated, results in keeping associates divided. A personal example occurs when my workplace has “daughters’ day,” and fathers bring in their daughters and move them from one cubicle to another to show them those geekolator wonders of the information age. They are never brought to my cubicle; it’s just too uncomfortable.  Darwinism pairs lifestyles on its opposite faces.   

            All of this has gotten boiled down to those “No Special Rights” initiatives, which would have their greatest practical effect in the workplace.

 

                        - 13 -

 

            Would protection from discrimination give gays “special rights”?

 

            Let’s start this with a couple of basic definitions: “A right is something we all have equally and exists without denying somebody else of their equal rights. A privilege is something often called a special right when one person gets access to such privilege through the use of government force at the expense of somebody else’s rights.” [36]

            In the early 90’s, there have been a number of initiatives and referendums on “gay rights” and, in particular, on the source of many of our “rights.”  The voters are deciding on whether the right to be left alone in the home (from the “presumptive” scrutiny of others) is a fundamental right at the individual level, or whether it comes from The State as a reward for participating in marriage, family, parenting, and the transmission of values.

            On the surface,  "Conservative" organizations in a number of states have sponsored initiatives to prevent local communities from enacting "gay rights" ordinances. The most famous, Colorado's Amendment 2, will go before the Supreme Court. The Colorado state constitutional amendment "would prohibit all branches of government ... from passing legislation or adopting policies to protect lesbians, gay men, and bisexuals from discrimination based on their sexual orientation."[37] Other initiatives took the clever tack of limiting "protected classes" to those already defined in Federal Civil Rights law (race, religion, gender, national origin). A few were more Draconian. In Washington, employers would have been told specifically that they had the right to fire people for sexual orientation (and to "ask", and this seems all right with Newt Gingrich). In Oregon, homosexuality would have been defined as unnatural and immoral.

            The proponents of these measures have come up with some interesting word salad: "special rights."  Logically, a special-right is nothing more than a government-defined privilege or entitlement, paid for by someone else upon government demand (as through regulations or taxes). Who is asking for "special rights?" In a trial in Cincinnati, proponents were "honest" enough to admit that society needed to maintain an active advantage for families with children. In a hearing in Missouri, one "evangelist" actually claimed that gay teachers should be fired because homosexuals "don't reproduce, they recruit." And Virginia Gov. George Allen wrote to me, "I believe that the historical husband-and-wife family is the very foundation of our society, and that the state should reaffirm the primacy of that time tested family model," when he was answering my letter requesting repeal of Virginia’s Crimes Against Nature Law (which, to repeat, does not uplift “family values.”) The Virginia Attorney General's office filed a friend-of-the-court brief in defense of Colorado's Amendment 2.

            In a strictly libertarian sense, however, gay rights laws to invoke a kind of "special rights." That is, gay men and lesbians would be given "special" exemption from discrimination under common law rights held by individuals to choose whomever they want to hire. But, by that reasoning, racial and religious minorities already enjoy the same "special rights."

            The constitutional fate of these Amendment-2-style initiatives may depend on exactly how they are constructed. Measures which simply limit the extension of minority status to already-established groups (with the "privileges" of statistical and disparate impact remedies) are probably constitutional, because our Federal system gives states wide powers in deciding broad, controversial public policy questions when they deal with "groups."  However, even Amendment 2 (or even the Cincinnati referendum, as upheld by a Federal Appeals Court) might not prohibit a locality from passing a "conduct" based law such as one I outlined above; although, in the October 10, 1995 Supreme Court hearing, Judge Breyer expressed a concern that Amendment 2 could be interpreted by public library or police department not to render government service to a gay person. Measures to prevent non-discrimination local ordinances really would deny individuals equal access to the political process, and therefore, equal protection of the laws which, in the 14th Amendment, really is defined at the individual level. Conservative judicial theory has long relied on the notion that the people should retain as much power as possible through normal "political" legislative judgments. Another way to look at this is to say that, even if Amendment 2 discriminates against gays (by denying equal political access) only after constructing them into a “group,” the State has not given even a simple “rational basis” for such a distinction.  In comparison with the military ban, there is no issue of heterosexual privacy (which is, in large part, the military’s “rational basis” for disparate treatment of gays as a “temporary group,” as was discussed in Chapter 3); there may be a Singaporean notion of social discipline at risk, but this is hardly “rational.” Or, perhaps, “legislating morality” would be held by Justices like Rhenquist and Scalia to constitute a rational enough “basis,” as following from Hardwick.  But, Amendment 2 arguably attempts to separate gay people (as “morally inferior”)  not just because of their presumed sexual “conduct” (and in a civilian application such “presumption” should not be so reasonable anyway), but because of their staying on the sidelines while “normal” people marry and procreate.               

            The bird-call "special rights" can certainly be turned around. Sometimes it sounds like "straights" wants special privileges for parents raising children even if they come at the expense of people without children.

            The Amendment-2 case is important for principles that go beyond the “special rights” rhetoric. If it is held to be unconstitutional by the Supreme Court, then such a decision could “call into question any law that refuses to accord homosexuality the same legitimacy or standing as that sexuality ‘imprinted in our natures.’ And with that decision, the court would also knock out the last prop that allows a state to hold back from accepting ‘same-sex marriage,’ the gift that is now being prepared for us by the courts and legislative commissions in Hawaii.”[38]  The “Full Faith and Credit” clause of the Constitution (Art IV Sec. I) could then be commandeered to hijack all the states in to recognizing “gay marriages” in Hawaii (discussed in Chapter 5). Conservative activists conjure all kinds of horrors, such as employers’ being required to extend spousal benefits to all same-sex domestic partners (covered in the previous chapter). Libertarians disapprove of such an outcome; but the notation that it could even happen shows another disadvantage of depending on big-business employers to shell out the dollars for health care and other benefits, and it also reminds one how over dependent we have become on the “state” to approve of our claim to entitlements based on our family situation.

            The myth that “rights” derive from the state (rather than from their quality of inalienation) creates a conundrum when we try to design absolutely “equal rights” between culturally competitive groups. “Equal rights” for gays and lesbians seems to mandate, not only the right to serve in the military, but legal recognition of the right to marry a same-sex partner and to adopt children. Yet, such absolute recognition would certainly compromise the best placement of orphan children, as noted previously. And, “equal rights” in employment, as constructed by liberals, would cause the state to interfere with well-intended efforts to decentralize and personalize the workplace to improve job prospects for everyone.[39]    

            The libertarian solution to all of these issues surrounding the employment (and housing) of homosexuals is that it should be neither a judicial or political issue. Government should not criminalize private adult consensual behavior, and government should not try to impose majoritarian condemnation of sexual practices through essentially unenforceable laws. Government should not discriminate or exclude among its own associates, not even in law enforcement, intelligence, teaching, or the military. On the other hand, government should generally not interfere with the private moral judgments of individuals. In a free market, where people really know how to take care of themselves, this arrangement will result in optimal prosperity and minimal actual discrimination.