It was 2002, and the big law firm’s profits were down. So when nine senior associates came up for promotion to partnership, only Jane made the cut. During the next few months, the eight others — Tom, Bill, Harry, Kirk, George, Sally, Peggy, and Mary — sued the firm, one by one. All of them complained of job discrimination. And each of them belonged to a group enjoying special protection under the ever-more-encompassing federal civil rights laws.
     
Tom sued under the Clinton-sponsored 1999 law protecting parents against workplace discrimination. He claimed that the firm’s partners had criticized him for billing "only" 2,000 hours that year and for seeking to avoid weekend and travel assignments to make time for things such as coaching his daughter’s soccer team.

Bill sued under another new law: the one barring discrimination based on sexual orientation. Among his complaints was that the firm’s partners had excluding him and his live-in companion from networking get-togethers with their families, and had pressed him harder to work weekends than they had pressed co- workers with children (like Tom).

Harry, a 45-year-old former schoolteacher who had made a mid-career switch to law, sued for age discrimination. Kirk accused the almost all white partnership of racial discrimination. George, who had recently lost his eyesight, sued for discrimination against the disabled. Sally sued for pregnancy discrimination: She received only dead-end assignments after her second maternity leave. Peggy sued for discrimination based on her religion (fundamentalist Christian), saying she had been treated like a member of a strange cult.

And Mary, a single parent, sued for gender discrimination, along with anti-parent discrimination — not to mention her sexual harassment claim. She said that the firm disfavored women (but not men) with small children, and had made Jane a partner only because she was childless and single.

This is, of course, a reductio ad absurdum: Not everybody who could cook up a lawsuit does. But it’s not a stretch to imagine that each of the employees in such a situation might be able to make a superficially plausible discrimination complaint — touching off years of litigation — even if the employer had a strong basis for defending its decisions as merit-based.

Anti-discrimination laws have already proliferated to the point where the vast majority of workers are members of one or more protected minorities. (While whites and males can invoke the bans against race and gender discrimination, the central purpose of these strictures has been to protect minorities and women.) But President Clinton thinks we need more of them. In the past he has pushed Congress to bar job discrimination against gay people. Now he wants it to ban discrimination against parents of children under 18 — that’s 36 percent of the work force.

Are we creating a formula for discrimination against the shrinking minority of people who are not (yet) protected minorities — childless young white males, for example? Have we already gone so far down this road that we might as well proceed? Is there any logical stopping point short of giving every employee a right to sue whenever he or she thinks some co-worker got a better deal?

Or should we, perhaps, stop creating new incentives for unhappy employees to take their grievances to federal courts, where they will incur the costs and inefficiencies of judges and juries second-guessing inherently subjective employment decisions, while much of the money that changes hands sticks to the lawyers?

The proposal to protect parents from job discrimination, which is currently being developed by the White House and Senator Christopher J. Dodd, D-Conn., is a poll-tested effort to court both working mothers and the pro-family vote. It’s also fine by plaintiffs’ lawyers, who give lots of money to Democrats.

As the father of two girls, I should, perhaps, be grateful that the President wants to give special protection to a group of which I am a member. But this proposal seems especially unwarranted — where is any real evidence of a big discrimination problem out there that needs solving? It also seems likely to foster costly litigation by parents whose discrimination complaints may in many cases arise from a sense that they are entitled to special accommodations. Such lawsuits would put pressure on employers to avoid liability by treating parents preferentially — which would often amount to (legal) discrimination against childless employees.

In contrast to the original impetus for job- discrimination laws, we obviously have no history of bigotry or animus against parents. Quite the contrary: In almost every line of work, for hundreds of years, most of the people who rise to the top — and who become bosses — have been parents.

Indeed, advocates for childless workers plausibly complain that these are the people who suffer from widespread discrimination: Family-friendly corporate policies, such as subsidized health care and day care for children, may deplete the pot of money available for fringe benefits for childless employees; flexible scheduling practices for parents can sometimes put pressure on childless workers to pick up the slack by working longer or less-convenient hours.

The only White House effort so far to demonstrate a pervasive problem of anti-parent discrimination has involved pointing to eight "case examples" culled from court reports. On inspection, they reveal nothing more than that a handful of people have claimed (not proved) that employers disfavored them because of perceived conflicts between their responsibilities at home and at work. In a nation of 130 million workers, that proves nothing.

But let’s stipulate what common sense suggests: Many employers need people who are willing and able to work very long hours (including nights and weekends), or to be on call at all times, or to travel a lot. Many parents are less willing or able to do those things — and to that extent are less productive — than they were before having children; and some employers put parents (especially mothers) on slower career tracks.

Is this discrimination? Not when the parents have been slow-tracked because they have chosen (wisely, in my view) to give priority to the needs of their children at times when they could have been working. That is a choice the parent has made to be a bit less — or, in the case of those who go part time, a lot less — productive. In some cases the result is lower pay, missed promotions, or even lost jobs.

An employer discriminates against parents only when it acts on the incorrect assumption that particular employees will (as many do) spend less time working in order to make time for their children. Some employers — stupid ones — probably do discriminate in this way. But all employers have strong business incentives not to mistreat productive employees who happen to be parents. And it is already illegal gender discrimination to treat working mothers worse than equally (or less) productive working fathers.

A brief description of the Dodd proposal, issued by the Senator’s office, is a bit confused (as Timothy Noah has noted in the online magazine Slate). Is the proposal’s goal merely to bar real discrimination against working parents, or, in addition, to mandate special accommodations for them? It asserts that the problem is that employers "often falsely assume that employees with parental responsibilities are not capable of performing as well." But three sentences later, it implies that parents may need special accommodations: "Parents, balancing responsibilities at home and at work, should be valued, not discriminated against."

Even if the actual bill, which has not yet been made public, avoids overtly mandating special breaks for working parents, employers would still have an incentive to give them in order to avoid having to prove in court that they do not discriminate.

Federal law — especially the Family and Medical Leave Act of 1993 — already pressures employers to make some limited accommodations for parents, and many employers are glad to do so. This is probably a good thing to the extent that parents can be accommodated without shifting substantial burdens onto their co- workers. But it would be going too far — and it would be unfair to childless workers — to create a financial incentive for unhappy working parents to jump into the litigation lottery.

In the event that this idea nonetheless catches the political wind, we should at least try to avoid the unintended consequence of putting new burdens on one group of mostly childless employees — those who are gay, and who have experienced far more discrimination than parents. I have a modest proposal that addresses this: Amend the parent-protection bill by adding a ban on discrimination against gay people. Call it the Family and Gay Job Protection Act of 1999. And see how that polls.