Journal of Business Ethics

, Volume 109, Issue 2, pp 209–217 | Cite as

Anti-Discrimination Laws: Undermining Our Rights

Article

Abstract

The purpose of this article is to argue in favor of a private employer’s right to discriminate amongst job applicants on any basis he chooses, and this certainly includes unlawful characteristics such as race, sex, national origin, sexual preference, religion, etc. John Locke and many after him have argued that people have natural rights to life, liberty, and property or the pursuit of happiness. In this view, law should be confined to protecting these rights and be limited to prohibiting other people from transgressing those rights. The law should not hinder an employer’s ability to discriminate, any more than it should compel people to marry against their wishes. These laws generally emerge from a moral perspective that people think should be imposed on everyone else. But those who don’t welcome those morals are in effect being coerced to abide by them against their will; this is unethical. Finally, it will be argued that the free market has mechanisms by which discrimination will, be rendered powerless to harm its victims.

Keywords

Discrimination Rights Free association 

Introduction

Morals, rights and the law are not the same thing. Rights dictate what people legally may and may not do. They establish proscribed and enforced entitlements. Morals on the other hand, are an attempt to define what is wrong and what is right. However, these may vary from person to person due to subjectivism. The law only states whether an act is legal or illegal. From a libertarian perspective,1 the law should be limited to ensuring that people comply with basic negative duties or obligations.2 In this paper we shall mainly be concerned with what the law should be, not with ethics or morals per se.

Anti-discrimination policies in the labor market are an example of laws that impose the subjective morality of some people onto the general populace. They restrict individual’s (namely business owner’s) freedom to choose.3 Discrimination is condemned for a variety of reasons. In contemporary society, it is wrong, and also illegal, to deny someone a job or fire an employee, because of their gender, race, religion and/or sexual orientation. The common consensus holds that it is unjust to discriminate over such criteria unrelated to productivity on the job and hence it ought to be illegal to do so. People have a “right” to equal job opportunities. Arbitrary criteria are irrelevant and have no effect on job qualifications.4 If a minority-job-applicant and a majority-job-applicant have the exact same qualifications, it is considered morally wrong to prefer one over the other based on their race or how they look.5 Both candidates, by stipulation, are equally capable of performing the job in a competent fashion. Yet, does not the owner of the property in question have the right to pick and choose, based solely on his own preferences?

An equally relevant question that should be asked, however, is the appropriateness of compelling a private business owner—to restrain his freedom—to employ someone he would otherwise not employ? Does not a natural right precede moral ones? The purpose of this essay is to advocate in favor of a private employer’s ability to discriminate. Section II distinguishes between rights, morals and the law. Section III builds the case in favor of the business owner being able to discriminate freely based of the framework established in section II. Section IV argues that a free market will tend to overcome discriminatory practices, without the need of coercive laws such as anti-discrimination acts. Section V presents a law case that illustrates our thesis. Finally, Section VI provides a conclusion for the paper.

Rights

Rights, for purposes of this article, will be based upon the Locke (1690) notion of human or natural rights. These, in turn, are predicated upon life, liberty and private property (or the pursuit of happiness). Bastiat (1850) and Thomas Jefferson (1776) are among those who hold that those entitlements belong to all human beings, period. “These three gifts from God precede all human legislation, and are superior to it” (Bastiat 1850, p. 21–22). Given their universal character, these claims are not dependent on anyone else’s consent. Rather, they belong to all human beings alike and ought to be respected.

Locke saw the individual and his rights as being the most important part of the community. “The individual is prior to society, which comes to existence only through the voluntary contract of individuals trying to maximize their own self-interest” (Bellah et al. 1985, p. 143). “The Reason why Men enter into Society, is the preservation of their Property” (Locke 1690).6 Therefore, individuals group together to devise ways—namely enact laws—that safeguard these liberties. Unfortunately, the law does so much more than this. It oversteps its boundaries. It seeks to establish the ways in which every citizen needs to behave. We are almost at the point where either an act is prohibited, or it is compulsory. Ideal human behavior is of course subjective. While the majority may agree that discriminating is wrong, some may still find the need to engage in this practice for widely disparate reasons.

Morality

Anti-discrimination laws are based on moral considerations, and seek to improve society by providing ‘equality’ amongst peers. These are so called positive rights. Natural rights are those that exist ‘in a state of nature’ as opposed to so-called positive rights, which are virtues that many believe people should possess. The main difference is that the positive ones, are really calls for wealth, e.g., forcing other people to behave against their will, while natural or negative ones are a claim to be left alone, with one’s person and property intact. Examples of negative rights are the right not to be murdered, not to be raped and so forth. Examples of positive “rights” are the “right” to food, clothing, shelter, friendship of, or employment with, other people, whether they consent to this or not. If everyone on earth suddenly decided to refrain from murder, rape, theft, we would in one fell swoop, all, have our negative rights fully respected. In contrast, with the best will in the world on the part of all people, we could still not all attain our positive “rights,” for these include wealth, and we cannot attain real goods and services with a mere act of the will.

Positive rights can be based of many beliefs and experiences; they are not at all constant amongst all human beings.7 Some think sexual relations before marriage are immoral, as is the case based on the teachings of the Catholic Church. Catholics are just but one group of people who support monogamy. Followers of Islam, agree that sex before marriage is immoral, but allow polygyny. In this tradition, men are permitted to have up to four wives at one time, so long as they treat each one fairly (Al-Jassem Diana 2011). Prohibition of this practice necessarily restricts a person’s freedom to act. The 1862 Morrill Anti-Bigamy Law, signed by Abraham Lincoln outlawed polygamous relationships despite them being a common practice amongst the Latter-Day Saints (USLegal.com, ud). Society in general saw polygamy as immoral, so a law was passed that restricted its practice. While the U.S. bans this practice, numerous Muslim countries allow it. In contrast, natural or negative rights appear objective.

In much the same way, most people argue that discrimination is immoral. But is it ethical to violate freedom to choose, when such choices do not violate the non aggression principle? Is it moral to force employers to interact with people they would otherwise not engage with?8 The firm should be able to say “I like X but dislike Y,”9 and act upon that preference. Why should the collective opinions of the masses supersede the opinions of a smaller group, namely entrepreneurs and business owners? Interestingly, there is no law that prohibits employees from discriminating, on any basis, against employers they do not like. For example, if a white man refuses to work for a black woman, or a black woman spurns employment with a white man, these choices are perfectly legal. But, logical consistency requires that discrimination in either direction be treated in the same way.

The Law

The law, ought to protect individuals’ natural rights. But it has failed to do so on numerous occasions. Instead, it has promoted people’s personal agendas. Bastiat (1850) analyzed how the law should aid the development of a free society, but has instead undermined this goal. “The law has been used to destroy its own objective: it has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect” (Bastiat 1850, p. 24). Anti-discrimination laws violate the freedom of association. According to Bastiat (1850) “law is the common force organized to act as an obstacle to injustice. In short, law is justice”. However, he also points out that “it is not considered sufficient that the law should be just; it must be philanthropic” (Bastiat 1850, p. 39) as well. Bastiat’s argument can be summed as follows:

When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him on to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all these. They are defensive; they defend equally the rights of all. […]

But when the law, by means of its necessary agent, force, imposes upon men a regulation of labour, a method or a subject of education, a religious faith or creed—then the law is no longer negative, it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. […]

Try to imagine a regulation of labour imposed by force that is not a violation of liberty; a transfer of wealth imposed by force that is not a violation of property. If you cannot reconcile these contradictions, then you must conclude that the law cannot organize labour and industry without organizing injustice (Bastiat 1850, pp. 42–43).

Anti discrimination legislation is used to equilibrate the playing field to help the underprivileged. But we should instead enable every human being to exercise his natural rights and make choices about his own life, so long as he does not violate the (negative) rights of others. The law should protect those liberties and refrain from dictating how people should act or behave in other regards. Potential employees should be able to approach an employer, apply for a job, without bearing any legal pressure whatsoever. The owner should have no obligations, quotas or ratios that force him to employ a member of a particular group. “A full commitment to erasing any differences in opportunities would require a totalitarian society in which the state was able to control every aspect of life to insure that no one obtains an ‘unfair’ advantage, such as a better teacher” (Ashford Nigel 2001, p. 23). The ramifications of such a proposal would obviously restrict all individual freedom. No one will be able to do anything without the state’s consent, if this law is taken to its ultimate and logical conclusion. Government would dictate what is permitted and what is not. Clearly this goes against the individual’s natural right for freedom and ought not to be implemented.

And this should be entirely reciprocal. If an employer approaches a potential employee, the latter should be under to legal pressure to accept the employment offer. Of course, this is never the case. We mention it, only, to show how grotesque is the present system.10

Anti-Discrimination Laws

Laws that prevent discrimination were enacted to protect employees from unfair practices. Whether an employee is female or male, white or black, Jewish or Catholic, homosexual or heterosexual, etc., he is covered by this legislation. The following are examples of federal laws against job discrimination:
  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;

  • The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;

  • The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

  • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;

  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and

  • The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination (EEOC, http://www.eeoc.gov/laws/statutes/)

The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these legal pronouncements. It also oversees and coordinates all federal equal employment opportunity regulations, practices, and policies.11 It is the governmental institution in charge of insuring compliance with these acts. These laws are coherent and should be enforceable, in the public sector, at least in the view of most people.12 The private sector on the other hand, is characterized in that manner for a reason. Factors of productions are privately owned, at least in the free society.

Businesses as Private Property

The employer should be able to freely discriminate exactly as he pleases because his company is private property.13 Every person who can offer a job invests time and labor to gain the purchasing power necessary to be in this position. Workers earn wages and after deductions for consumption, use these payments to acquire property, purchase resources, set up a business, etc. If, instead of starting a company, the employee had used his savings to purchase a new home, he would have had the right to invite to it anyone he wanted, and to exclude all of those he found undesirable, for any reason. Why does he lose that right by diverting his savings to a business instead of a private house? It might be argued that his own dwelling is not open to the public, as is his firm, and that is the reason he may legally discriminate in the former and not the latter case. But why is his store to be considered to be “open to the public” in the first place. If asked, he will vociferously deny this. Instead, he will maintain that his business is open, only, to that part of the public with whom he chooses to interact commercially. It is specifically not open to those members of the public he wishes to exclude.

The employee is discriminating against burgers when he spends his money on pizza. He is favoring pizza makers by paying them instead of burger makers. How would the employee feel if he was told he can only get pizza once a year, and must instead spend his money buying all sorts of alternative meals at all other times? In much the same way the corporation was founded and built with the owner’s resources and labor. If it were not for his work and investment, the organization would not exist. Therefore, the company and any profits derived from its operations are the owner’s personal property.

Private property should be used only in ways owners deem appropriate. Consequently the employer should have the ability to run his corporation as he pleases, even if he purposely favors one faction over another.14 Any “discrimination law limits the freedom of property owners to use their money as they see fit” (Rockwell 2003). Universal or negative rights, such as freedom and ability to accumulate wealth, do not oppress anyone else’s ability to do the same. They do not coerce anyone to act in a given way, just to refrain from doing so. Positive rights on the other hand, like the compulsory mandates of the EEOC, oblige people to behave in a certain manner by transgressing constitutional and natural liberties. The owner should be able to hire and fire anyone he wants without fear of legal repercussions, but alas this is not the case. Unfortunately, he cannot exercise his ability without restraint due to those laws. Rockwell (2003) expands on the argument by highlighting the costs associated with anti-discrimination laws:

Every employer must constantly prepare and organize to diminish the likelihood that a complaint will be filed. In doing so, they take steps that lead to inefficiencies or avoid steps that might improve efficiency. Also, consider the costs imposed by those who threatened to file and did not because the issue was settled informally. Then consider the vast drain in human energy spent actually litigating these complaints (the typical case takes half a year to settle).15

Owners spend a lot of resources insuring none of their policies violate artificial state-given rights as in doing so they risk being sued. In fact, business owners lose money: there is the cost of lawyers, time wasted in court, inefficiencies due to not being able to hire the most productive workers and the compensation that must be paid to the plaintiff. As well, are unforeseen consequences in terms of resentment on the part of those passed over who are not members of favored minority groups.

Picture a legislator passing a law that restricts the amount of sugar you can put into your morning coffee, a law that states how much TV you can watch per day, or a law stipulating you must wear a suit when you are at your house until 11 at night and must be back in a suit by 6 the next morning. Would you feel comfortable being told what to do in your own house, with your own property? Of course not. Why, then, tolerate these outrages when they occur in people’s businesses, which are also their own private property?

Rational/Beneficial Discrimination

As business owners run their businesses and expand them, they see trends and learn from them. Discrimination “is the means by which we are able to condense all of our many experiences with other people down into some economized conceptual units that can be used to predict the unknown characteristics and behavior of others” (O’Neill and Ben 2009). Owners correlate and associate characteristics, like race for instance, with outcomes. O’Neill and Ben (2009) refers to this as rational discrimination. He makes reference to a study carried out in Washington D.C. where cab drivers tended to avoid serving black males more than other people. The reason was that membership in this group was strongly correlated with criminal behavior. The cab driver, looking out for his well being, tended to abstain from serving black males. It was plain common sense.

Similarly, employers may be looking for workers with specific characteristics that lead them to discriminate in favor of employees with those features. Hooters for instance, is known for hiring attractive waitresses. That company has been the target of lawsuits in 1997 and 2009 for not hiring male servers. But “working for a privately owned business is not a right; consequently the job never belonged to the applicant in the first place. Hooters is not hurting men with their policy because it is not a man’s right to wear the orange shorts and white tank top” (Malek and Ninos 2009). Attractive female waitresses are part of their image, their trademark. No regulation should be able to make them change their policy or suffer financially (Ridley et al. 1989). Anti-discrimination laws unjustifiably do both.

Discrimination is nothing more than the act of engaging in personal tastes and preferences. John likes meat, and Joe is a vegetarian. Joe discriminates against meat. Just because John eats meat, does not mean Joe has to eat that foodstuff as well; he is entirely justified in discriminating against it. Meat may be a good source of nutrients, but Joe thinks he can find those nutrients elsewhere. He should not be coerced to eat meat if he does not wish to do so, even though John may think meat is the best way to get the aforementioned nutrients. Correspondingly, if the employer dislikes Latinos, he should not be coerced to employ, keep and work alongside such people, any more than he should be forced to invite them to his home. If the business owner prefers to work with Asians, he should be able to act in this manner, particularly as it is his own property. The Latino has no right to demand the employer to hire him over the Asian. Unfortunately, many times the Latino,16 will fail to see this fact. The Latino believes he is entitled to demand the position just like anyone other qualified applicant. When discrimination is observed, people turn to the law to correct this ‘anomaly’ through the use of force.

Contractual Employment

A different case is to be made if firing an employee is incompatible with an enforceable contract.17 A contract is a voluntary agreement to which both employer and employee consent. If the company hires a worker for a specified period of time under contract, then the boss has the obligation to carry it out. Both parties have engaged in a binding agreement by which either one (employer or employee) can seek retribution from the defaulting party. They voluntarily signed the contract, meaning they agreed to the conditions that were stipulated in it willingly. This makes them responsible to fulfill the obligations in the contract to one another. The law should enable the enforcement of contract and remain “impartial or neutral between persons, ignoring their class, religion, political opinions, gender or sexual orientation” (Ashford Nigel 2001, p. 77). The law should treat everyone equally otherwise it undermines its proper function as enforcer of natural rights.

In an employment contract, the worker leases his skills and abilities in exchange for the employer’s resources, generally wages. It is an exchange of private property between the contractor and the contractee. An employee devotes his time and knowledge to help the employer in exchange for some sort of compensation. If either party breaches the contract, the non-breaching party can potentially suffer losses by the actions of the breaching party. Therefore, the non-breaching party is entitled to demand that the defaulting party fulfills the task it promised to carry out or receive some sort of compensation instead, in order to make them whole. Neither one ever contracted to refrain from discriminating in any way, manner, shape or form.

Discrimination Versus the Free Market

In a free market, discrimination on the basis of anything other than productivity, while a right, is an unsustainable practice for employers. The market is constantly changing. New products, methods of production and skills that emerge in the capitalist system will correct discrimination due to competition, self-interest, and public demand.18

Competition from other employers as well as the employees themselves will weaken discriminatory practices. The fact that one owner dislikes a given ethnicity, race, etc., does not mean others will feel the same way.19 The job seeker has more options than that one company. The employer may well listen to the offer of the potential employee, but the latter does not have the right to demand that the former override his taste for discrimination. Out of self-interest, however, a business owner will be lead by Adam Smith’s (1776) “invisible hand” to examine the candidate’s credentials. If the applicant is qualified, the employer will choose whether to hire the applicant or not. It will be a simple cost-benefit analysis. If benefits exceed costs, the employer will hire, if they do not, he will not.

Perhaps a numerical example will clarify this matter. Suppose that white and black workers have the same productivity levels, at $10 per h. However, due to racial discrimination on the part of, let us posit, all white employers, the pay of blacks is $7, while that of whites is $10. In this situation, any (racist) firm that hires a black person will garner excess profits of $3 per h. Those that do so will steal a march on those that do not. Black employees will be a bargain, under these conditions. A company that hires them will be able to undersell, and eventually bankrupt, its competitors that stick to their whites only policy. Thus, the market will tend to undermine such behavior.

Successful profit seeking employers know what skills are highly correlated with productivity in their businesses. If one individual exhibits these skills (even if he is someone the employer previously discriminated against) and none of the other applicants do, it would behoove the entrepreneur to hire that individual or risk a competitor employing him. By discriminating, the employer narrows the pool, from which he can seek potential employees. As Walker (1993) notes, “if a firm decides that it will only hire men, for example, the firm must spend more time searching for qualified applicants who also must be men.” Since the employees the employer specifically wants are more scarce, their wage demands will tend to be higher than if the company was willing to hire females as well. “Consequently,” Walker (1993) concludes, “the discriminating employer faces higher costs in two ways: through longer and more extensive searches, the costs of which also include lost productivity, and through effectively decreasing the available (i.e., acceptable) labor supply, driving up the wages that the employer must pay.” Therefore, an employer will face costs he will have to pay for to indulge himself in his discriminatory practices.

In a free market, competitive employers will tend to overlook irrelevant criteria and look for productive employees. Workers will be hired from all sorts of backgrounds. Once people start associating with each other (voluntarily), they may realize that their misconceptions were wrong and start interacting more and more with the people they previously discriminated against. A free market,20 due to the profit motive, will organically solve the issue of discrimination (Henderson and David 2008).

When many employers dislike a particular group of people it can be inferred that the demand for that group of people is not high. Low demand translates into lower wages for that particular group of people. If their productivity is just as good as that of another group’s whose wages are higher, employers will in the long run realize that they could be saving money by employing that group of people at a lower wage.21 As more employers realize this, demand for that faction will rise. Suppose company X, fails to employ cheaper labor because of discriminatory criteria. This corporation will be driven out of business, because other firms gain a cost advantage by employing cheap labor. The other entrepreneurs will keep producing at a cheaper cost, with the same quality (recall they have the same productivity) and can therefore lower their prices as well. Consumers will most certainly choose the cheaper product, given that the quality is the same. Consequently Company X will lose sales, incur losses in the long run, and be forced into bankruptcy. Evidently, discrimination is not a sustainable practice in a free market, even without anti-discrimination laws.

Law Case

The law case Hosanna-Tabor Church v. EEOC pits religious freedom against the “right” to be free of discrimination.22 Churches and synagogues have a special exemption from anti discrimination law: they are allowed to pick and choose their spiritual leaders on any basis they choose. But this does not apply to ordinary employees. In other words, they can exclude females from the role of priest, or rabbi, but they cannot do so with jobs like janitor. This particular case turns on the issue of whether or not the plaintiff qualifies for this exemption.

But it does much more, too. It highlights the rights of all of us to engage in free association. Yes, it is crucially important for the coherence of religion that such organizations be free to pick and choose those they wish to be associated with. If Catholics are forced to ordain women as priests, or Orthodox Jews to accept females as rabbis, their rights will clearly have been violated.

But why should only religious institutions benefit from the law of free association? And why should this right not extend to all associated jobs, certainly including that of janitor? This is part of the patrimony of all of us. Indeed, without the law of free association, we are all (partially) enslaved. Take that “curious institution” which infamously existed until 1,865 in this country. One way of interpreting it was that it was a (vast) violation of the law of free association. From a not unreasonable perspective, the key rights violation of slavery was that it was incompatible with the law of free association. It compelled some people (mainly black slaves) to associate with other people (mainly white slave masters) against their will. Were the law of free association fully operational, it would have ended slavery forthwith. It is in that sense that we can say that anti discrimination laws, which violate the law of free association, (partially) enslave us.

And, too, this pernicious legislation is logically inconsistent. For one thing, it amounts to compulsory bisexuality. For both male and female hetero and homosexuals discriminate against half the human race in terms of romantic liaisons or marriage partners. Only bisexuals are not “prejudiced” in this regard. But even they discriminate, in terms of beauty (“lookism”), sense of humor, intelligence, etc. A possible objection to this line of thinking is that discrimination should be allowed in our personal, but not our commercial lives. But why ever should this be the case? Other laws, legitimate ones, such as the prohibition of murder, rape, theft, apply to both the home and the office. If discrimination is really a rights violation, then it, too, should be proscribed in all our relationships. Not only does this law imply compulsory bisexuality, it would also mandate, if carried though to its logical conclusion, a blending of all races, as depicted in the South Park episode, “They took our jobs.”23 While there is indeed some intermarriage between the different races, our choices in this “market” are clearly discriminatory. If they were not, then the members of the various sub groups of the population would not disproportionately marry each other, as they do. Again, if we are to take seriously laws against discrimination, they must be applied across the board, and not be confined to one relatively small arena of our existence, business.

For another, these laws are applied inconsistently even within the commercial realm. They apply to sellers not buyers. A restaurant may not legally exclude members of a certain race from admission, but customers are free to boycott eating establishments owned by members of a race they despise. They apply to employers, not employees. That is, a company may not limit its hiring to a given race or gender; but job applicants are perfectly free to ignore firms owned by members of a group against which they are prejudiced.

And, these laws are all so unnecessary. They stem, almost entirely, from economic illiteracy. It is thought that in the absence of anti discrimination laws, blacks, homosexuals, and women, and other downtrodden groups, will be victimized; that these laws are necessary to help the economically wounded. Nothing could be further from the truth. They are not needed for this purpose, and their effect is not to help those at the bottom of the economic pyramid, but to hurt them, as we have seen in section IV, supra.

Conclusion

Discrimination is nothing more than the employer, or anyone else, acting on a preference; an innocent preference, at least in terms of violating the legitimate negative rights of anyone else. Pursuing self-interest, business owners cannot, in the long run, sustain fixations about who to hire based on criteria like skin color, assuming equal productivity. Theoretically, however, the employer may show preference in hiring someone, based on his arbitrary criteria. Even then, the owner is within his rights to do so. The business is his private property, therefore he should be able manage it in whichever way he wants. Anti-discrimination laws are nothing more than a constraint on individual freedom, to which the employer did not consent. He must obey the law or bear the consequences. These laws are moral injustices. Such policies are at odds with individuals’ negative rights as declared by John Locke. In fact, all legislation should be based on negative rights, as pointed out by Bastiat. Sadly, this is not the case in modern society. Alternative methods, such as campaigns to raise awareness on given issues should be carried out, instead of enacting laws that restrict freedom. So long as activist institutions do not coerce anyone, or use state agencies to force people, then they too are within their rights to freely express their views in economic action.

Footnotes

  1. 1.

    Bergland (1986), Hoppe (1993), Huebert (2010), Kinsella (1995, 1996), Narveson (1988), Nozick (1974), Rothbard (1973, 1977, 1982).

  2. 2.

    Negative duties or obligations are requirements that individuals refrain from transgressing against other’s natural rights to freedom, private property and life. Simply put, refrain from enslaving, stealing, and killing someone else.

  3. 3.

    This is a title that was used by Friedman and Rose (1980).

  4. 4.

    This argument fails since qualifications are not the same as productivity. Pretty waitresses will attract more customers to a restaurant than ugly ones. This means pretty girls are more productive (in terms of attracting people to a restaurant). Therefore, looks do play a role the profit seeking (e.g., consumer satisfying) employer should consider, along with other qualifications, when employing someone.

  5. 5.

    However, this differs from saying that the employer should not be entitled to discriminate or whether it is legal or illegal. Moreover, if both candidates do in fact have identical qualifications, then perhaps “arbitrary” criteria do indeed determine who gets the job and who does not. Arbitrary criteria might serve a purpose and can be used as an asset by some employers to increase productivity (as noted in n.4).

  6. 6.

    “Lives, Liberties, and Estates, which I call by the general Name, Property” (Locke 1690).

  7. 7.

    In contrast, it is the rare person who favors murder, rape, theft, and other violations of negative rights.

  8. 8.

    A law that compels people to interact with those of a given religion, race, ethnicity, etc., who they would otherwise not do, is known as forced integration. Slavery was yet another instance of forced integration.

  9. 9.

    For whatever reason.

  10. 10.

    Some might object to treating both sides of the labor contract in the same manner, on the ground that the employer has much more “power” than the employee. Stuff and non-sense. The rule of law (Hayek) requires that all people be treated in the exact same manner. And, as for power imbalances, this can go in either direction, to the extent that this concept makes any sense at all, which it most certainly does not. The point is, in the free society, anyone who saves a bit of money may get up on his hind legs and set himself up as an employer, or at least as self employed, even with a very modest amount of money at his disposal.

  11. 11.

    For more on the EEOC, see http://www.eeoc.gov/laws/statutes/.

  12. 12.

    That is, to the extent we ought to have a public sector at all. See on this Anderson and Hill (1979), Benson (1989, 1990), Block (2007), Block and Michael (2010), Casey (2010), DiLorenzo (2010), DiLorenzo (2010, 2011), Guillory (2009), Hasnas (1995), Higgs (2009), Hoppe (2008, 2011), King (2010), Kinsella (2009), Long (2004), Molyneux (2008), Murphy (2005), Nozick (1974, 1977, 1997), Stringham (2007), Murphy (2005, 1970), Tinsley (1998–1999). However, there are difficulties in assuming it is even possible for the government not to discriminate. Suppose the government sets up a test, either for admission to one of its universities, or for employment in one of its bureaus. Such an examination will necessarily make invidious comparisons between individuals. For example, if it uses the ACT or SAT, it will discriminate against stupid people. And why is this justified? If it utilizes a skill examination for the job of policeman or fireman, it will be unable not to discriminate against the unfit. The point is, discrimination is a necessary aspect of human action, of all human action. The state is vulnerable to this as well as is anyone else.

  13. 13.

    For simplicity purposes, it is assumed that the employer is the actual owner of the company and has complete control over it. However, even in more complex organizational structures, the owner delegates control to other employees, scouts, etc., who have the ability to hire at their personal discretion in accordance with the company guidelines.

  14. 14.

    I.e. pizza over burgers; whites over blacks, males over females, blacks over whites, females over males, etc.

  15. 15.

    Rockwell (2003) reported that in 2002, 84,442 complaints relating to discrimination issues were filed in the US. A total of $310.5 million were awarded in monetary benefits.

  16. 16.

    Or any given group that feels discriminated against for that matter.

  17. 17.

    Assuming neither party was coerced into the agreement. Coercion to sign a contract goes against the individual’s natural right to freedom, meaning that contract should be rendered invalid and unenforceable.

  18. 18.

    How long this may take is unclear. The market is not a perfect mechanism but is one that adjusts to the demands of the public. An employer will not be able to be ‘finicky’ if he wishes to remain competitive. He will have to overlook unrelated attributes and focus on the potential employee’s ability to contribute to the bottom line.

  19. 19.

    If all do, they may do so to different degrees. If they are all exactly equal in their taste for discrimination, the ones who most want to maximize profits will start hiring members of the downtrodden group.

  20. 20.

    If there is a minimum wage law in effect, these profit incentives will not prevail. For then, employers will not be able to hire members of the downtrodden group and earn large profits from so doing. But, this does not vitiate our thesis that the market tends to eradicate employer discrimination. For, a minimum wage law is incompatible with laissez faire capitalism.

  21. 21.

    See our numerical example of this phenomenon, supra.

  22. 22.
  23. 23.

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Copyright information

© Springer Science+Business Media B.V. 2011

Authors and Affiliations

  1. 1.Joseph A. Butt, S. J. College of BusinessLoyola University New OrleansNew OrleansUSA

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