Henrik Ræder Clausen and our Austrian correspondent AMT have collaborated with our German translator JLH to examine the recent deleterious effects of Austrian “anti-discrimination” laws, and in particularly the harm done to nightclub owners who wish to keep out potentially unruly customers.
Discrimination Is Not Evil
by Henrik Ræder Clausen and AMT
with additional translation by JLH
A couple of interesting, seemingly connected stories have come out of Austria. Both have to do with discrimination, yet the outcomes are very different. “Discrimination” is all the rage these days. Being able to discriminate used to be considered a positive, personal quality. Times have changed, and now “discrimination” is considered a serious crime.
The first story concerns a young English teacher, Mr. Maier. Working at an English language institute, he has been helping students prepare for their IELTS exam, an exam non-native speakers of English must take if they want to study at English or American universities. Mr. Maier’s success rate is a high one, and many of his former students have informed him about their scores, which are usually those the students were aiming for.
A quality indeed, and worth paying for.
Recently, Mr. Maier was asked once again whether he would available to coach two girls wanting to take the IELTS, and together with the office manager dates were set up. When he inquired whether the course would take place he was told that the prospective students had asked whether the teacher was a “native” speaker. The office manager answered in the negative even though this is not true, as Mr. Maier is completely bilingual and has been booked as “native speaker” many times before. In addition, the students demanded that the teacher possess US citizenship since that would virtually guarantee them high scores on the test. Explanations that Mr. Maier boasts more than seven years’ experience in test preparation were deemed completely irrelevant by the students.
In a perfect world, this situation would be nothing to report. Mr. Maier could, and would, accept that the customer is a) always right, and b) has the right to choose his or her teacher.
In the warped world of today, this is clear discrimination. Mr. Maier was discriminated against because of his citizenship, or lack thereof. He failed to get the job not because of his abilities, but because he did not have the right passport.
Also in a sane world, where citizens are free to do as they see fit, this constitutes discrimination. So what?
In the warped world of today, as in a perfect world, Mr. Maier would not dream of suing for compensation. He is of the opinion that discrimination is a fact of life, a part of everyday dealings, and as such in most cases not negative.
The virtue of discrimination
In everyday life, people discriminate. They pick apple pie over peach pie, for no other reason than liking apple pie better. That doesn’t offend the peach pie, nor should it. Customers are free to choose where to put their money, and can choose one store for the simple reason of liking it better than the other — or, as above, to dismiss qualified suppliers on any irrational grounds. That constitutes ‘discrimination’, yet is perfectly legal.
Discrimination means differentiating between what is desirable and what is not. It is a subjective evaluation of things, events and persons, and by human nature we do tend to distinguish between good and bad, useful and useless, desirable and unattractive. Laws against ‘discrimination’ as such — that is, laws that are overly broad — deny us the right to differentiate in certain fields of life, and conversely assign others rights to not be discriminated against.
This is, as a principle of law, rather abstract, and a significant departure from how we live our lives. In daily life we discriminate who to visit, who to date, who to start projects with etc. We do so based on personal evaluations and prejudices (well- or ill-founded), but generally we do have the right to evaluate things personally and act upon our judgment. ‘Discrimination’ simply isn’t a crime in the same sense that ‘theft’ or ‘rape’ is.
Then, why do we have laws against ‘discrimination’?
There has been a general condemnation of being ‘prejudiced’, that is, having preconceived ideas. The notion behind this is that prejudice results in widespread damaging behavior, is the root cause of problematic attitudes such as anti-Semitism, and that by eradicating prejudice one can prevent future crimes originating from unjustified prejudice.
But prejudice makes sense. If you’re in a jungle and see that on one side of a tree there is a striped head, on the other side a striped tail, the prejudiced person will conclude “Tiger!” and get out of there fast. The person prejudiced against prejudice would have a similar reaction, but would force himself to say: “Really, I can’t permit myself to be prejudiced against tigers, and the tiger may even feel offended if I do something to indicate that I don’t like it. Thus better to walk on and pretend nothing is amiss.” Here, as in other cases, natural selection clearly favors prejudice.
Fort Hood, political correctness, and the fear of facing actual problems
The problem is that if we don’t have the guts to differentiate between ‘Good’ and ‘Evil’, and to act accordingly, we get eaten. Or shot, as was the case at Fort Hood, where Maj. Nidal Malik Hasan should have been suspended from service long before he managed to shoot 41 people, killing 31 of them. Fear of ‘discriminating’ constrained the hand of the intelligence services, with fatal results.
“Political correctness. It’s no longer annoying and frustrating. It’s no longer a restraint on common sense and speech. It’s dangerous and deadly,” Gabriel said.
“Why is political correctness so powerful that there are some in the military that would risk the lives of their soldiers [rather than] be accused of discrimination?” she said.
“Those same leaders who would bravely lead troops into battle are cowering in fear of political correctness,” she said.
‘Political correctness’, ‘religious sensitivity’, ‘anti-discrimination’ — the problem has many names. Yet, they have a common core — a denial of our right to act in accordance with our values. International organizations and human rights committees deal with problems on levels of abstraction bordering on the absurd — thus the generic condemnation of ‘discrimination’ — and this leads to regulation on the rights of discotheque owners to refuse guests, while neglecting real world problems of severe persecution. This nitpicking on benign details while ignoring glaring problems is ridiculous.
The other incident concerns a young Austrian of Egyptian background who wanted to enjoy a night out in the Austrian city of St. Pölten. He and his friends tried to gain entrance to a discotheque, where the security guard at the door checked identification of those wanting to enter the premises. This is standard in Austria and has been for as long as one can remember. According to several newspaper reports, the security guard denied the man entry, saying “Today we only allow regular patrons.” When the young man asked whether this denial was as a result of nationality [?? He was Austrian, so what was the problem? He has Austrian citizenship, but apparently still feels Egyptian], the security guard referred to his boss and his rules. A week later, the young man tried again, with the same result: “Not today!”
The rejected man contacted ZARA, the most important anti-racism group in Austria, which also reports to the EU and the Fundamental Rights Agency, and charges of discrimination were filed immediately. According to the verdict:
In both cases the plaintiff was refused admission to the discotheque exclusively on grounds of his ethnicity which was determined by his ‘foreign appearance’ and by the name on his driver’s license. In accordance with paragraph 1, section 1Z4 of the GIBG, no one may be directly or indirectly discriminated against in admission to or acquisition of goods and services which are available to the public. If a person receives, has received, or would receive less favorable treatment than another person in a comparable situation on grounds of ethnicity, that is direct discrimination. In the eyes of the law, the plaintiff proved discrimination. Testimony of foreign witnesses on behalf of the discotheque changed nothing. The discotheque was legally required to pay punitive damages in the amount of 1440 euros.
Business owners, on the other hand, do not have an immediate right to refuse doing business with individuals they do not like. Anti-discrimination laws with strong punishments make business owners give up, and assigns immigrants special rights to act with impunity in detrimental ways.
According to Kurier (March 17, 2010, page 18), the owner of the discotheque said he would pay, but only due to economic reasons. “It is a waste of money to take the case to the supreme court.” The verdict surprised him because it was the young Egyptian-Austrian who caused the problems in his discotheque. “We have many guests from many different countries whom we hold very dear and who ‘play’ according to the rules and laws.” However, there are some guests with a migration background “who do not accept our cultural norms.”
This is the crux of the matter. The business owner is trying to uphold what is considered decent behavior in his place, according to what is ultimately his personal judgment. That will naturally exclude persons who have, ahem, different behaviors, for example towards women. While no specifics are given, there appears to be a history of problems with this particular person.
This verdict brushes this off, and trumps the indicated problems, as well as several witnesses who spoke for the discotheque owner. The indication of a history of trouble-making, backed by witnesses, should cast into reasonable doubt that the exclusion was based on ethnicity, yet did not. The usual legal practice of not passing a guilty verdict as long as reasonable doubt exists appears to have been ignored. The fear of ‘discrimination’ apparently trumps classical principles of Rule of Law.
Further, this verdict is an example of what we term ‘draconian’ punishment. The actual damage done is immaterial, it is not like there is a damaged car to repair or a broken window to replace. A feeling of ‘unjust discrimination’ is hard to quantify in monetary terms, for no free market exists where this feeling is traded at observable prices. Thus, instead of defining a fine with direct proportion to actual damage, it is set to a level that should be sufficient to force a change in behavior for the defendant, as well as other citizens made aware of the verdict. This kind of micromanagement of citizens who have not committed any crime is not fitting for a free society.
Verdict: Discotheque Found Guilty of Refusing Admittance
It is the first verdict in Austria that clearly categorizes refusal of admission because of “foreign appearance as direct discrimination on the grounds of ethnic identity”.
The verdict appears to be groundbreaking to the political and leftist elite and has thus been published online:
In the first instance, the plaintiff wished to visit a discotheque in St. Pölten, together with a friend. Everyone in front of them was admitted. Even the friend was allowed to enter. After looking at the plaintiff’s driver’s license, the security firm charged with monitoring admission refused the complainant admission on the grounds that only “regular customers” would be allowed in. Since it was clear to the plaintiff that refusal of admission was on the basis of his of his nationality, he inquired of the door-man. This person did not answer the question and made clear that he could do nothing more and referred cryptically to the boss’s instructions. During this time, the other door-man let the rest of the people in.
A week later, the plaintiff tried again with a different friend to visit the discotheque. Again he had to show ID. The doorman looked at the driver’s license and said: “Not today.” Once again, the friend was allowed in with no problem.
The doorman is hired to do things like this, valued for his skill in discriminating who make good customers and who do not. Note that no explicit reason for the rejection is given. Unless we’re missing something, the ethnic justification for the rejection is an assumption, not a documented fact.
Now, doormen represent the business owner and are hired for business purposes. Hiring a doorman costs money, and having him turn away prospective customers is an immediate expense as well. Business owners have as their primary concern to turn a profit, and would not decline business unless there is a reason for it — such as individuals disturbing an otherwise pleasant evening for his other customers.
The article continues:
The plaintiff turned to ZARA — Civil Courage and Work Against Racism. ZARA activated its complaints department and, represented by them, the young man sued the company responsible for immaterial compensation for discrimination on the grounds of ethnic identity in two cases under the Equal Treatment Law (GIBG) and he won.
The verdict is clear. In the findings it says: “In both cases the plaintiff was refused admission to the discotheque exclusively on grounds of his ethnicity which was determined by his ‘foreign appearance’ and by the name in his driver’s license.” In accordance with paragraph 1, section 1Z4 of the GIBG, no one may be directly or indirectly discriminated against in admission to or acquisition of goods and services which are available to the public.
This is a matter of principle. In a purely free society, any business owner — any individual, in fact — would be free to decide who he’d do business with and who he’d reject, without providing any justification for his choices. Now, this is obviously a hypothetical situation. Regulations exist, and anyone wanting to do business will have to abide to those restrictions, or not run a business at all.
There’s an asymmetry here, though. Customers are still free to choose their shops based on any criteria they desire, while business owners do not have that right. This actually constitutes a limitation to the property rights of the business owner. He owns his business, and as such has a fundamental right to do with his business as his pleases, including turning away potential customers.
The principle of ownership implies that the owner has the right to deny others the use of his property at his own discretion. Anti-discrimination laws violate this fundamental principle.
This verdict makes that right secondary to the right of the potential customer not to feel discriminated against, and assigns the person a positive right, enforced by the legal system, to be admitted to the discotheque.
If a person receives, has received, or would receive less favorable treatment than another person in a comparable situation on grounds of ethnicity, that is direct discrimination. In the eyes of the law, the plaintiff proved discrimination. Testimony of foreign witnesses on behalf of the discotheque altered nothing. The discotheque was legally required to pay punitive damages in the amount of €1440 Euros.
This is a rather remarkable fine, right up there in the league with drunk driving, violence, and compensation for unjustified imprisonment. One may wonder: “Why so big a fine?”
The objective of such hefty damages is obviously to dissuade the business owner from repeating the offense, and to present a clear example to other business owners that acting in a similar way will be expensive and detrimental to their profits, in order that they will not act in a similar way. By imposing fines of this size, all business owners will be made to fear similar lawsuits, and thus refrain from refusing admission of similar persons. This is in line with the EU Framework decision on combating racism and xenophobia, which states:
The purpose of this framework decision is to ensure that racism and xenophobia are punishable by effective, proportionate and dissuasive criminal penalties in the European Union (EU).
Now, racism in its extreme forms has led to unspeakable crimes, which every decent human being will not wish to see repeated. But will forcing discotheque owners to admit otherwise unwanted persons serve that end, or will it eventually make matters worse?
According to Kurier (March 17, 2010, page 18): “The verdict surprised him, because it was the young Egyptian-Austrian who caused the problems in his discotheque.”
This is important, for a primary function of the doorman is to keep out troublemakers, and apparently there is a previous history of problems here. Now this function has been deemed of secondary importance to ‘non-discrimination’. This verdict will make it harder for discotheque owners to evict troublemakers of non-Austrian ethnic origin. To put it another way: There will be much more scope for non-Austrians to behave in unruly ways, and this is bound to have a negative impact on the perception of immigrants.
The article continues:
In the course of this trial, a much-discussed question about passive legitimization in connection with refusal of admission (the question of who is the correct defendant) was finally judicially resolved.
The issue of who bears the responsibility in cases like this is of lesser interest. Common sense dictates that the security company does represent the business in a case like this.
From the filing of the suit to the verdict, the trial lasted just one year. In the trial, the defendant objected that it had tasked an external security firm and therefore passive legitimization was lacking. The court explained:
“The case before the court is to be judged from the point of view of a hospitality contract and the pre-contractual duties of protection which result from that. A pre-contractual obligation of protection on the part of the defendant is that the defendant shall not be discriminated against on grounds of ethnicity in connection with this hospitality contract. When the defendant employed a security firm, it guaranteed against violation by the doormen of GIBG paragraph 1313a of the General Civil Code of Law (ABGB), because the actions of the doormen were within the job description indicated by the plaintiff and were foreseeable in it.
From start to finish, the trial lasted just under a year.
The above story appears to be just the tip of the iceberg. Another followed immediately:
Damages: Disco Before the Kadi (judge)
A Turk and his Austrian wife were denied entrance to a Graz disco — they are now suing for damages. Owners of the Disco were not prepared to comment.
A verdict in St. Pölten is causing commotion in the disco scene: for the first time, a disco owner had to pay damages because a young man from St. Pölten was not allowed into the club because of his ethnic origin. The verdict was 1440 euros.
In Graz a similar case is pending. Family B. wanted to spend a relaxing evening in the disco Fledermaus, but it came to nothing. The doorman (bouncer) refused them entrance. “After that had happened to us often, this time we really got mad,” says Mrs. B. They turned to Helping Hands and the equal rights commission in Vienna.
It was November, 2008. The married couple wanted to enter the disco close to midnight, but two bouncers demanded the man’s ID — no passport, no entry. The couple went home and returned twenty minutes later with the Turkish husband’s pass. However, that was still not enough for the bouncers. “We select our guests,” they are reported to have said.
This constitutes a rerun of the scenario above, with a clear assertion from the business owner that he has a right to choose who to do business with. This right is now being disputed in court, and since laws against ‘discrimination’ are in force, there is a significant chance that the disco owner will lose the case.
This, however, is a stiff and bureaucratic way to go about things. If ‘discrimination’ is really such a big problem, there would be a business opportunity for others to run discotheques where discrimination is guaranteed not to take place, while others can be run with full rights of the owners to refuse any individual for no specific reason.
The common sense of common people
One of the main reasons that discotheque owners and others choose to refuse certain guests is that they don’t “play by the rules” — that is, they don’t act reasonably in line with the behavior he and most guess expect, leading to difficult situations, conflicts and possibly even to violence in places which should be secure for everyone.
The question is: Who gets to set the rules?
The answer used to be: The landlord.
In days past, the word of the patron was final. Now, in these times of cultural relativism and ‘cultural enrichment’, this right is no longer a given. Customers who feel unfairly treated increasingly take recourse to the law, using anti-discrimination laws to undermine the right of the business owners to enforce rules of conduct.
This is bad, for common people have common sense of rules of conduct that cannot be codified into law. Coherence in our societies is based on common, sensible rules that are largely respected. When the law is used to suppress the private exercise of rules of conduct, an important source of civilized behavior, the common citizen, is cut off. Though it happens in the name of ‘non-discrimination’, the long-term disruptive effects on our societies is likely to be detrimental.
The article continues:
The equal rights commission clearly decided that the Turk as well as his wife were discriminated against. With this verdict in hand, Family B. ultimately went to civil court and sued for damages. The trial is ongoing.
Daniela Grabovac of Helping Hands knows that this was not an isolated incident for Family B. “On the contrary, it is the same as always in the ordinary course of things: immigrants are not allowed into discos. Except the excuses have improved in the meantime, and proof becomes more and more difficult.” In 2009 alone, she has had ca. 50 complaints, “but many do not come to us.”
No one was prepared to comment on behalf of the disco Fledermaus.
We can expect similar (successful) lawsuits to follow in the near future, though not for Mr. Maier.
While anti-discrimination laws are originally well intentioned, with the European history of anti-Semitism in the background, the examples above show they have now come to a point where they are repressive, not protective of the freedom of European citizens. Likes and dislikes, attraction and revulsion are natural features of human life, and cannot be legislated away. The immediate risk from the frivolous application of anti-discrimination law is that certain ethnic groups are effectively granted impunity to behave in ways normally considered socially unacceptable.
We can expect an increase in cases like this, where anti-discrimination and anti-racism groups misuse the power granted them by overly broad laws to coerce businessmen and others out of reacting sensibly to bad behavior. A ‘license to misbehave’, granted to Arabs and other ethnic groups, can only cause an increase in actual racism, a problem that no amount of state coercion can cure. If this path is followed, unruly vigilante groups may form in response. This is not a good way.
What we really need is the opposite: Repeal the broad anti-discrimination laws and focus on laws that deal with actual physical crimes: Threats, violence, damaging property and the like. Removing the legal stigmatization of ‘racist’ will permit the common sense of common people to sort out the small conflicts in daily life. While such a reform would disempower ‘anti-discrimination’ groups and constitute a snub to the European Union, it would — much more significantly — restore power to where it belongs in a democracy: the citizens at large.