Why Shouldn't Private Employers Get to Make Hiring Decisions Based on Their Beliefs?

There's no way around the fact that anti-discrimination laws limit free association rights.


A number of Catholics, from Pittsburgh Bishop David Zubik to an order of nuns called The Little Sisters of the Poor, are actively embroiled in a legal battle over whether or not faith-based organizations can be forced to violate their deeply held convictions. I happen to agree with the petitioners that the government ought not be in the business of telling people how to exercise their religious beliefs.

But opponents have a point when they note that the American legal regime as it currently stands provides protections to faith-based individuals that aren't always available to other groups. Religion, like race, and unlike sexual orientation, is considered a protected class at the federal level. As a result, a Catholic worker can sue her employer for alleged discrimination on the basis of her faith.

Exactly that is happening right now in Nevada, where a woman named Grecia Echevarria-Hernandez has initiated legal proceedings against the Real Alkalized Water company, where she says she was fired for refusing to participate in Scientology "betterment" courses.

"Echevarria-Hernandez alleges her treatment violated Nevada law and constituted discrimination, retaliation and an unlawful employment practice under the federal Civil Rights Act, which applies to any business with 15 or more employees," the AP reports. "She's seeking compensation for past and future lost income and benefits, unspecified damages for emotional distress, and punitive damages."

But just because the employer's behavior in this case (probably) violated the law doesn't mean this lawsuit is a good thing. Why shouldn't a private business owner be able to only hire members of his or her religion, or to require as a condition of voluntary employment that workers learn about a certain faith?

One might object that Americans shouldn't be forced against their will to be trained in a religion they don't agree with. You might also complain that the kind of guy who uses a position of power to pressure his underlings into studying a particular religion is abusing his authority. But there's no law against being a jerk—and no one is forced to work at a place that's run by that flavor of jerk, either, just as no one is forced to attend a religious school where, say, church attendance or theology classes are required.

Last year a Massachusetts Catholic school was slapped down by the courts for rescinding a job offer to a man after learning that he's in a same-sex marriage. That such a thing could happen to an explicitly religious educational institution was rightly decried by people far and wide. 

As Reason's Scott Shackford wrote at the time, "The ruling is obviously going to be a concern to supporters of religious freedom of association, because it puts the government in the position of deciding for which hires religious institutions can allow its faith to help dictate its actual operations. Why should a judge be telling a Catholic school what positions should matter in terms of expressing its faith?"

But this is what inevitably happens when you start down the path of ascribing a special status to certain groups, and saying people may not choose whether or not (or under what conditions) to do business with their members. Before long, the same sort of law that allows a Catholic woman to sue her former employer for trying to indoctrinate her into Scientology is being used to prevent a Catholic private school from opting not to employ someone who engages in a lifestyle the Church has deemed immoral for 2,000 years.

Inherent to freedom of association is the freedom to make choices about whom to associate with that some people—perhaps the large majority of people, even—will find repulsive. That my choice is unpopular doesn't change the fact that forcibly preventing me from making it nearly always infringes on my rights. 

Some people may think that preventing discrimination is so valuable a goal as to be worth the cost paid in restrictions on individual liberty. I think those people underestimate the dangers to a free society that precedent sets.