Freedom of association is an important principle in life and American law. It has also often served as a cover for segregation and discrimination.

Blogger Andrew Sullivan has long been a critic of anti-discrimination laws generally, but he has come around to the idea that if other groups are provided protection under the anti-discrimination laws, gays, lesbians, and transgenders should not be excluded from protection. Suillvan writes in his blog:

[T]o deny protection to one specific minority (which is very often the target of discrimination) while including so many others, becomes bizarre at best, and bigoted at worst. Leaving gays out sends a message, given the full legal context, that they don’t qualify for discrimination protection, while African-Americans and Jews and Catholics and Latinos and almost everyone else is covered by such protections.

See The Dish (Nov. 3, 2013) (last accessed Nov. 12, 2013). Sullivan argues in part that federal anti-discrimination laws are nevertheless probably superfluous because many companies have adopted anti-discrimination policies of their own. Sullivan does no analysis as to whether such policies are pro-active or whether they are a defense against possible litigation as a result of local laws. Furthermore, Sullivan does not address the question of whether a company policy really provides meaningful relief and accountability in the same way that external, public enforcement can.

It is true, as Sullivan points out, that many people are discouraged at the prospect of protracted public litigation. But it is also true that it can be quite difficult to pursuade a company to enforce its internal policy against itself, particularly if there is no legal sanction backing it up. As the old saying goes, when the fox guards the henhouse, one should not be surprised if it dines on chicken.


© Charles Williamson Day, Jr., 2016. All rights reserved.

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