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Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: The Employer's Sub-Constitutional Rights?
As I mentioned last week, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I'd like to serialize it here.
Last Tuesday and Wednesday, I blogged the Introduction and the beginning of the argument in favor of such statutes, followed by an explanation of why such statutes usually don't violate employers' constitutional rights. This week, I discuss some other arguments against such statutes (and you can see the whole article right now, if you'd like, by looking at the PDF). I begin today with arguments that the statutes should be rejected in order to protect employers' rights, even if not constitutionally protected rights, not to associate.
[* * *]
Even in the absence of a constitutional right not to associate, of course, all of us have an interest in choosing whom we deal with, whether as friends, fellow club members, business partners, or employees. We may not want to deal with Nazis or Communists or Klansmen or supporters of terrorist movements. We may feel this particularly strongly because of our personal experiences: The child of refugees from Cuba may not want to deal with people who praise Che Guevara; the widow of a police officer who was killed in the line of duty may not want to deal with people who praise attacks on police, or call police officers "pigs"; a black or Jewish employer might especially not want to deal with Klansmen. Likewise, a business owner might want to cut off relations with someone because the business's other employees or customers don't want to associate with the person.
But when it comes to employment, our legal system has long generally rejected such claims. An employer might not want to employ union leaders, whose organizing, bargaining, and strike-threatening behavior he sees as jeopardizing the business he has spent a lifetime building up. An employer may not want to employ someone who made discrimination complaints against the employer in the past, perhaps on grounds that the employer views as ill-founded.
A Catholic employer may not want to hire Jehovah's Witnesses, whose beliefs sharply condemn Catholics.[1] A gay employer may not want to hire people who belong to religious groups that condemn homosexuality (especially ones that the employer views as historically responsible for discrimination or even violence against gays). A Palestinian-American employer who views his nation as being at war with Israel may not want to hire Israeli Jews.[2] Yet the employers are barred from refusing to hire employees on these grounds.
One could respond to these analogies this way: When it comes to constitutionally protected discrimination—for instance, a church's right to choose its clergy, or a person's right to choose a spouse, or a person's right to choose a roommate—the Constitution protects the right not to associate regardless of whether judges or legislators approve of the reason for the discrimination.[3] But when it comes to economic association, the law should be solicitous of reasonable bases for refusals to deal but not of bigoted or unreasonable ones.
Not wanting to deal with people because of their skin color or nationality or sexual orientation or beliefs about the Trinity is unreasonable and hateful, the argument would go. But not wanting to deal with people because of their political speech or beliefs is reasonable often enough (even if not always), and we should accommodate employers' desire to do that, even if the Constitution would let us ban such discrimination.
But I don't think that's quite right. There's nothing inherently unreasonable or hateful in an employer's not wanting to employ union leaders, or employees who had made past complaints. There's nothing inherently unreasonable or hateful in an employer's not wanting to deal with employees whose religious beliefs don't just turn on theological questions but sharply condemn the employer's religion or sexual orientation or other actions or beliefs. There's nothing inherently unreasonable or hateful in an employer's not wanting to deal with employees who have voted for certain candidates.
The legal system bans such discrimination not just because it's somehow hateful or irrational (though some religious discrimination is indeed that), but in large part because it's valuable to promoting employee collective bargaining, or employee whistleblowing about illegal practices, or the freedom to vote or to openly worship. Likewise, for the reasons given in Part I, it's valuable to promote the freedom to openly speak and participate in politics beyond just voting.
One might also argue that antidiscrimination laws do burden people's (nonconstitutional) freedom to choose whom to associate with, but we enact them because there's massive, society-wide discrimination on certain bases, which justifies a rare departure from a norm of unregulated employment decisionmaking. Antidiscrimination laws were needed to break broad patterns of refusing to hire blacks, Hispanics, women, Jews, Catholics, gays, union activists, whistleblowers, and the like. But for rarer forms of discrimination, however foolish they may be, it's enough to rely on the employment market, in which most employers will be reluctant to fire good employees, and most employees needn't fear being fired, especially since they could easily find other jobs.
And perhaps this does help explain why, for instance, many states haven't banned discrimination based on marital status, height, weight, off-duty smoking, having children, being a crime victim, and the like, though some states have.[4] No need to restrict employer freedom via employment discrimination law—especially given how expensive employment litigation can be, and how it can chill legitimate employer action (more on that below)—to deal with problems that are fairly rare, the argument would go. And maybe this should also apply to political discrimination, if one thinks it's rare enough.[5]
This, I think, is likely the strongest combination of arguments against the private employee speech protections I discuss here. The key questions, I suppose, are: (1) How often do employers discriminate (or expressly or implicitly threaten to discriminate) based on employee speech and political activity, especially in a time that is widely seen as more politically polarized than before, and a time in which social media has made it easier than ever to call for boycotts triggered by an employee's unpopular political views? (2) How much does this chill the free speech we want to see for the sake of self-government, the search for truth, and self-expression? And I don't have a confident answer to those questions.
[1] Cf. Catnwell v. Connecticut, 310 U.S. 296, 301 (1940).
[2] Cf. Espinoza v. Farah Mfg., 414 U.S. 86, 88 (1973) (concluding that "national origin" in Title VII "refers to the country where a person was born," as well as "the country from which his or her ancestors came"); Minn. Stats. § 363A.03 subd. 25 (defining "national origin" as "the place of birth of an individual or any of the individual's lineal ancestors"), quoted favorably in id. at 88 n.2 (citing earlier version of statute).
[3] Some judges might, for instance, take the view that refusal to engage in interracial marriage is morally wrong (or at least is highly shallow, if it's based on preferences as to appearance rather than based on racial hostility), but people must have a categorical right to choose not to marry someone, even for bad reasons.
[4] See Discrimination—Employment Laws, Nat'l Conf. of State Legislatures (July 27, 2015), https://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx. This list notes 19 states that have banned marital status discrimination, and only a few that have banned discrimination based on the other factors I note.
[5] More broadly, of course people who are skeptical of bans on private discrimination generally, and would either reject them all or limit them to just a very few most harmful forms of discrimination (as many libertarians would), might resist any attempt to add to such laws.
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Hire any lawyer privileged person, hire a lawsuit. Rent seeking generating of toxic case is what this subject is about. Eugene needs to address the costs of this vile toxic profession. Everything it does is rent seeking with gaslighting bullshit as masking ideology.
Completely agree, and I would go further. It seems to me that a right not to associate does apply to all these cases, and the courts ought to accept it as a Tenth Amendment right.
And more importantly and practically, employers do discriminate on these grounds (and others legally forbidden such as age) all the time and get away with it, simply by not stating their reasons, or giving deceptive answers if someone demands to know why. There is no practical way to prevent this because there are thousands of possible reasons I might not hire you, and only a dozen or so of those reasons are illegal. Thus any serious attempt to enforce these laws is going to be arbitrary and incomplete, and thus as unfair as the discrimination it seeks to prevent.
The examples you give are valid and show employment should be free will. Period.
Right.
There’s nothing inherently unreasonable or hateful in just about any individual decision that one prefers associating with particular people.
It’s no more inherently unreasonable or hateful to prefer working or studying with people of (for example) ones own sex than it is to prefer sleeping with them. Everything comes from social context. Certain preferences in certain contexts can lead to major social problems, especially if they become pervasive and normative.
A tendency to attribute hate and animosity motives to people who do things one doesn’t like can be mere projection. Nor is it limited to the left. It wasn’t that long ago that people explained homosexuality by saying that these are people who hate members of the other sex. And even more famously, slaveholders regularly explained abolitionism by characterizing abolitionists as motivated by baseless hatred of a lifestyle different from themselves.
In my view, trying to see things in terms of hate leads to a subjective maelstrom where the outcome is going to depend on ones partisan viewpoint and not much best.
Instead, I think that these laws need to be justified for constitutional purposes by rational, objectively reviewable criteria like effects or potential for effects on society and on others, not by appeals to or assertions of hatred on the part of those doing the behavior. But I think that rational basis sets a low bar for review of this type.
There are a great many things that cause no real harm if only a small minority of people do it. But if everybody did it, the effects would be serious, and they become even more serious in a social hierarchy situation where a group that has power de facto shuts another group out. Thus the existence of a power imbalance increases the justification of these laws because it increases the chances of negative social effects,
In my view, a legislature can pass laws of this nature as a prophylactic to prevent everybody from doing it, even if the numbers doing it now are small.
In this respect, I would not treat preferences I might be sympathetic to differently from those I might not be for constitutional purposes. For example, I think it’s totally illegitimate for judges to assert that people who want to work or study with people of their own sex are motivated by hate, while it’s the opponents of people who want to sleep with people of their own sex who are motivated by hated. In my view, animosity jurisprudence is a judicially completely illegitimate, essentially partisan way of conducting both analyses. I would completely eschew it. It is not the business of the constitution or the courts to regard people of any kind, no matter how much the judges may personally not like them, as a scourge to be irradicated. Rather, it’s their job to decide in these and all other anti-preference-law cases whether a legislature acted rationally in concluding that acting on the preferences involved has potential for negative social effects if done pervasively and in a way that creates an imbalance between haves and have-nots.
There are a great many things that cause no real harm if only a small minority of people do it. But if everybody did it, the effects would be serious, and they become even more serious in a social hierarchy situation where a group that has power de facto shuts another group out. Thus the existence of a power imbalance increases the justification of these laws because it increases the chances of negative social effects,
This is a critical point, IMO. Those who criticize public accommodation laws on libertarian grounds implicitly assume that discrimination is both relatively rare and idiosyncratic, rather than systemic. It’s as if some restaurateur somewhere decided he didn’t like red-haired people, and refused to serve them. (Even there, he might be required to put up a sign.) When it becomes systemic it damages large numbers of people.
I think that these laws need to be justified for constitutional purposes by rational, objectively reviewable criteria like effects or potential for effects on society and on others, not by appeals to or assertions of hatred on the part of those doing the behavior.
…..
In my view, a legislature can pass laws of this nature as a prophylactic to prevent everybody from doing it, even if the numbers doing it now are small.
This seems right to me.
The argument about being systemic might imply that some private organization that has captured a very large share of the market, such as most social media companies, damages enough people by discriminating all by itself, and even types of discrimination which may not occur very often would, if done by on e of these companies, affect so many people that it should be outlawed.
It might.
Imagine if AT&T, back in the old days, decided it wouldn’t sell phone service to some group.
There’s nothing inherently unreasonable or hateful in an employer’s not wanting to deal with employees whose religious beliefs don’t just turn on theological questions but sharply condemn the employer’s religion or sexual orientation or other actions or beliefs.
I suggest that in the case of employers organized as per-share voting corporations it is entirely unreasonable to do that. I also think it is reasonable, without need to enquire further into motives, to label that kind of discrimination as hateful.
What to do about corporations organized on the basis of one-member-one-vote is less clear. Majority decisions arrived at by that method have the advantage of process parallel to democratic ideals, but still complicate the issue unless the vote is unanimous.
Why do the mechanics of corporate ownership matter more for the logic than the concentration of ownership? Suppose one individual holds 80% of the voting shares, and 20% are beneficially held “for the big guy”. Why does that make them less protected by (or liable under) anti-discrimination law than if they formed some other kind of corporation or partnership?
I also think it is reasonable, without need to enquire further into motives, to label that kind of discrimination as hateful.
That’s because you’re not playing with a full deck.
The problem with bans on private discrimination is that they don’t ever get passed until after the need is gone.
While the discriminatory feeling is in the majority, the ban bill will be dead on arrival. Once the discriminatory feeling is in the minority, the ban bill become passable – but is no longer necessary.
The result is the we sacrifice freedom (even the non-discriminatory are now subject to inspection, oversight and abuse by anyone who can use this excuse to pursue a grudge) for theater.
The problem with bans on private discrimination is that they don’t ever get passed until after the need is gone.
I think the Civil Rights Act is a pretty clear refutation of this.
There was plenty of racial discrimination in 1964.
While the discriminatory feeling is in the majority, the ban bill will be dead on arrival. Once the discriminatory feeling is in the minority, the ban bill become passable – but is no longer necessary.
Again, I disagree. A substantial minority that discriminates can still do harm, making the bill necessary. Wasn’t that the case with the CRA? There was a national majority in favor of the bill, but the discrimination existed (primarily, but by no means solely) regionally.
On the contrary, the passage of the Civil Rights Act of 1964 is one of the primary datapoints supporting my hypothesis.
Yes, there was plenty of racial discrimination in 1964 – and there is still plenty of racial discrimination today. However, that racial discrimination was already on a downward trend leading into 1964. The rate of social change and of the decline in discrimination did not accelerate after the passage of the CRA. If anything, the data suggests that passage of the CRA might have slowed the trend. (If fairness, the data I’ve seen cannot rule out a null result. It’s possible that passage of the CRA had no result. The data do rule out any large positive result, however.)
In other words, the passage of the CRA did not stop the “substantial minority” that were (and still are) doing harm but did trigger all sorts of compliance, litigation and social strife costs that we are still paying.
typo – should be “In fairness …”
Can we PLEASE have an edit button?
Suffice it to say, I disagree with your analysis of the CRA.
I lived in the South during that time, and while there may have been a bit of a downward trend – I don’t really know – it was definitely slow.
It would take a lot to convince me that the CRA really slowed down the decline, though it might be that it stiffened resistance in some quarters.
OTOH, ISTM that it did trigger compliance by many. As to the litigation, well, some of it was necessary, and a lot triggered by those who resisted the act. I don’t think you can fairly criticize the CRA for that.
Reasonable people can look at the same data and still disagree on its interpretation – but I would urge you to look for that data.
What I’ve seen shows that the direction of social change was universally downward (less discrimination) and that it was actually of greater magnitude in the South (in part, because they had further to go). The rate of change was itself responsible for some of the resistance but then, as you suggest, the passage of the CRA stiffened that resistance.
Yes, the CRA triggered compliance but that does not mean that attitudes changed. Nor in my opinion could it. You can’t legislate morality.
OK, but attitudes and behavior are different things.
Let the hotel clerk grumble about having to rent to Blacks if he likes. Even if the CRA increased the grumbling – and it might just because it gave a veneer of political philosophy to cover the racism – it might also have increased the number of hotels that took Black guests.
Of course some of this depends on enforcement, as well as the passage of the statute.
That overlooks what happened in the case of the American South. When discrimination in the South was banned, it was a national majority that made it happen. Southerners on their own would not have done so then, and probably not by now either, in my judgment.
To the extent that this is a valid argument, why isn’t it a valid argument against all public accommodations laws?
Why, you’re right! Let’s scrap all such laws!
Because there are other interests in play?
Just saying there are other interests in play is not a valid response.
Assuming the base argument is valid, why should those other interests matter?
Well, because “we have an interest” is not the same as “we have an absolute right.”
When you use the term “interest” I take it to mean something that has some weight, but is not dispositive. People have an interest in being able to travel and find hotels and restaurants that will accommodate them without a lot of trouble and potential embarrassment.
People have an interest in being able to travel and find hotels and restaurants that will accommodate them without a lot of trouble and potential embarrassment.
And yet…
“we have an interest” is not the same as “we have an absolute right.”
“When you use the term “interest””
That was a quote, not me using the term.
And again, it is absolutely not enough to say there are different interests, you have to say why those differences change the answer.
I relate this to the “Ban the Box” movement to forbid prospective employers from asking job applicants if they have ever been convicted of a felony. The laudable goal is, obviously, to facilitate the re-integration of felons into society, so they have options beyond resorting to crime or becoming wards of the state to survive. Of course, the same people who demand employers hire felons are also the first to demand the immediate expulsion from society of anyone who expresses a thought out of step with current left-wing dogma.
A couple of years ago, the local big-league baseball team signed a player who had been accused of beating his girlfriend. Though he was never criminally charged, the accusations seemed very credible. Needless to say, this created backlash with many. I was discussing this with someone, and while I agreed that I would not have signed this player, but, assuming the accusations were true, what should be done? Should he be forbidden form ever working again? Or perhaps relegated to the lowliest jobs, where he might be able to subsist and no more
Everybody needs to work, even those with unfashionable ideas. Perhaps a broadening of torts like intentional interference with economic relations would quell these lobbying efforts to “cancel” people.
Just to be clear, most “ban the box” laws do not forbid employers from asking job applicants if they have ever been convicted of a felony. Rather, they require that the employer wait to ask that question until after the person has been offered the job. The employer can then consider the criminal record and decide whether to rescind the offer.
The idea is that this makes it harder for companies to have automatic no-criminal-record policies. The employer can’t throw the criminal applicant’s resume in the trash as soon as it arrives; instead, the employer has to spend the time and energy to interview the applicant and make the offer. Given that, the thinking goes, the employer will then only rescind the offer with good reason, rather than doing it blindly.
My state’s version prohibits asking on the application and allows asking during the job interview. At least, that is my understanding. I do not ask about criminal records during job interviews and have not sought legal or HR advice on that subject.
Some say the problem with “ban the box” is people will assume that those people are criminals and they can not prove otherwise by checking “no”. Again, this doesn’t come up in my experience. We don’t have young black men from the projects applying.
I suspect what your state permits is discussion with the applicant of his conviction after the conditional offer has been extended and the background check received. Basically, the employer can explore the nature of the offense to determine if it is incompatible with the job. IME, employers have a general ban on crimes involving violence or dishonesty, which basically leaves drugs as the only conviction that can still lead to a job.
One wrinkle I haven’t seen an answer on is the 7-year rule as applied to long jail sentences. Generally speaking, in many states you must disregard any conviction more than 7 years old — lots of times they wont even show up on the background check. However, what do yo do about someone who was convicted of a serious crime (murder, rape etc.) more than 7 years ago, but only recently got out of jail?
I was under the impression this was just an idea/movement. I did not realize there actually were any laws. But, if Wikipedia is to be trusted, there actually is one in – surprise! – California, which seems to operate as you describe. Additionally. there is a similar ordinance in San Francisco, plus an ordinance in Oakland which applies to housing, which seems to be a straight ban on discrimination against felons in housing.
It seems I haven’t really heard much about BTB in several years (perhaps due in part to overall increases in crime), but my concern wasn’t with the concept’s efficacy or wisdom, but its implications on the right of association.
Apparently, I skimmed the Wikipedia article too quickly, as it states 11 states have such laws, as does the federal government. Well, I’m glad to have learned something today.