Anti-Discrimination Laws: Undermining Our Rights

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.

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Notes

  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.

    http://www.scotusblog.com/case-files/cases/hosanna-tabor-evangelical-lutheran-church-and-school-v-eeoc/.

  23. 23.

    http://www.youtube.com/watch?v=brj2UkUPjCI; http://en.wikipedia.org/wiki/Goobacks.

References

  1. Al-Jassem, D. (2011). Women in polygamous marriages suffering psychological torture, Arab News, http://arabnews.com/saudiarabia/article308231.ece.

  2. Anderson, T., & Hill, P. J. (1979). An american experiment in anarcho-capitalism: The not so wild, wild west. Journal of Libertarian Studies, 3, 9–29, http://mises.org/journals/jls/3_1/3_1_2.pdf.

    Google Scholar 

  3. Ashford, N. (2001). Principles for a free society. Arlington: Institute for Humane Studies.

  4. Bastiat, F. (1850). The law. London: The Institute of Economic Afafirs.

    Google Scholar 

  5. Bellah, R. N., et al. (1985). Habits of the heart. Berkeley: University of California Press.

    Google Scholar 

  6. Benson, B. L. (1989). Enforcement of private property rights in primitive societies: Law without government. The Journal of Libertarian Studies, IX(1), Winter, 1–26, http://mises.org/journals/jls/9_1/9_1_1.pdf.

  7. Benson, B. L. (1990). Customary law with private means of resolving disputes and dispensing justice: A description of a modern system of law and order without state coercion. The Journal of Libertarian Studies, IX(2), 25–42. http://mises.org/journals/jls/9_2/9_2_2.pdf.

  8. Bergland, D. (1986). Libertarianism in one lesson. Boaz: Orpheus Publications.

    Google Scholar 

  9. Block, W. E. (1992). Discrimination: An interdisciplinary analysis. The Journal of Business Ethics, 11, 241–254. http://tinyurl.com/24yojf; http://tinyurl.com/2fwlfc; http://tinyurl.com/2gejlp.

  10. Block, W. E. (2007). Anarchism and Minarchism; No Rapprochement Possible: Reply to Tibor Machan. Journal of Libertarian Studies, 21(1), Spring, 91–99, http://www.mises.org/journals/jls/21_1/21_1_5.pdf.

  11. Block, W. E., & Michael, F. (2010). How Would an Anarchist Society Handle Child Abuse? Oct 13 2010. http://www.lewrockwell.com/block/block167.html.

  12. Casey, D. (2010). Doug Casey on Anarchy. March 31 2010, http://www.caseyresearch.com/cwc/doug-casey-anarchy.

  13. DiLorenzo, T. J. (2010). The culture of violence in the american west: Myth versus reality. The Independent Review, 15(2), Fall 2010, 227–239, http://www.independent.org/pdf/tir/tir_15_02_4_dilorenzo.pdf.

  14. Friedman, M., & Rose, D. F. (1980). Free to choose. New York: Harcourt, Brace Jovanovich.

    Google Scholar 

  15. Gregory, A. (2011). Abolish the police. May 26 2010, http://www.lewrockwell.com/gregory/gregory213.html.

  16. Guillory, G. & Patrick T. (2009). The role of subscription-based patrol and restitution in the future of liberty. Libertarian Papers 1, 12, http://libertarianpapers.org/2009/12-the-role-of-subscription-based-patrol-and-restitution-in-the-future-of-liberty.

  17. Hasnas, J. (1995). The myth of the rule of law. Wisconsin Law Review 199, http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm.

  18. Henderson, D. R. (2008). How free markets break down discrimination. The Freeman Ideas on Liberty, 58(3), 136.

    Google Scholar 

  19. Higgs, R. (2009). Why we couldn’t abolish slavery then and can’t abolish government now. August 20 2009, http://www.lewrockwell.com/higgs/higgs128.html.

  20. Hoppe, H.-H. (1993). The economics and ethics of private property: Studies in political economy and philosophy. Boston: Kluwer.

    Google Scholar 

  21. Hoppe, H. -H. (2008). Reflections on the origin and the stability of the state. June 23 2008, http://www.lewrockwell.com/hoppe/hoppe18.html.

  22. Hoppe, H. -H. (2011). State or private law society. April 10 2011, http://www.lewrockwell.com/hoppe/hoppe26.1.html.

  23. Huebert, J. (2010). Libertarianism today. Santa Barbara, CA: Praeger.

    Google Scholar 

  24. Jefferson, T., et al. (1776). US Declaration of independence. Retrieved April 30, 2011, from http://www.archives.gov/exhibits/charters/declaration_transcript.html.

  25. King, S. (2010). Daily Anarchist interviews Walter block, September 9 2010, http://www.lewrockwell.com/block/block165.html.

  26. Kinsella, S. (1995). Legislation and the discovery of law in a free society. Journal of Libertarian Studies, 11, 132 (Summer).

    Google Scholar 

  27. Kinsella, S. N. (1996). New rationalist directions in libertarian rights theory. Journal of Libertarian Studies, 12(2), 313–326, Fall, http://www.mises.org/journals/jls/12_2/12_2_5.pdf.

    Google Scholar 

  28. Kinsella, S. (2009). The irrelevance of the impossibility of Anarcho-Libertarianism. August 20 2009, http://www.stephankinsella.com/2009/08/20/the-irrelevance-of-the-impossibility-of-anarcho-libertarianism.

  29. Locke, J. (1690). Second Treatise of Government. Retrieved March 11, 2011, http://www.constitution.org/jl/2ndtreat.htm.

  30. Long, R. (2004). Libertarian anarchism: Responses to ten objections, http://www.lewrockwell.com/long/long11.html.

  31. Malek, N. P. (2009). The right to work at Hooters? February 9 2009. Retrieved November 03, 2011, from http://mises.org/daily/3326.

  32. Molyneux, S. (2008). The stateless society: An examination of alternatives. http://www.mail-archive.com/libertarianenterprise@yahoogroups.com/msg02056.html.

  33. Murphy, R. P. (2005). But wouldn’t warlords take over? July 7 2005, http://mises.org/story/1855.

  34. Narveson, J. (1988). The libertarian idea. Philadelphia: Temple University Press.

    Google Scholar 

  35. Nozick, R. (1974). Anarchy state and utopia. New York: Basic Books.

    Google Scholar 

  36. Nozick, R. (1977). On Austrian methodology. Synthese, 36, 353–392.

    Article  Google Scholar 

  37. Nozick, R. (1997). On Austrian methodology. In Socratic puzzles. Cambridge, MA: Harvard University Press.

  38. O’Neill, B. (2009). It’s Discrimination! July 9 2009, http://mises.org/daily/3545.

  39. Paul, R. Undated. http://www.youtube.com/watch?v=7o4kiWpqoeg&feature=PlayList&p=9645F6A68683F679&playnext=1&playnext_from=PL&index=4.

  40. Ridley, S. E., Bayton, J. A., & Outtz, J. H. (1989). Taxi service in the district of Columbia: Is it influenced by the patron’s race and destination? Washington, D. C.: Lawyers’ Committee for Civil Rights under the Law.

  41. Rockwell, L. H. Jr. (2003). Discrimination and Freedom. The Free Market 21, 4.

  42. Rothbard, M. N. (1973). For a new liberty, New York: Macmillan, http://www.mises.org/rothbard/newliberty.asp.

  43. Rothbard, M. N. (1977). Do you hate the state? The Libertarian Forum, 10(7), http://www.lewrockwell.com/rothbard/rothbard75.html.

  44. Rothbard, M. N. (1998 [1982]). The Ethics of Liberty, New York: New York University Press, http://www.mises.org/rothbard/ethics/ethics.asp.

  45. Smith, A. ([1776] 1979). An inquiry into the nature and causes of the wealth of nations, Indianapolis, IN: Liberty Fund.

  46. Stringham, E. (Ed.). (2007). Anarchy and the law: The political economy of choice. Somerset, NJ: Transaction Publishers.

    Google Scholar 

  47. Tannehill, M., & Linda T. ([1970] 1984). The market for liberty, New York: Laissez Faire Books, http://www.lewrockwell.com/orig11/tannehill1.html.

  48. Tinsley, P. (1998–1999). With liberty and justice for all: A case for private police. Journal of Libertarian Studies, 14(1), 95–100 (Winter), http://www.mises.org/journals/jls/14_1/14_1_5.pdf.

  49. U.S. Equal Employment Opportunity Commission. (2011). Laws enforced by EEOC, http://www.eeoc.gov/laws/statutes.

  50. USLegal.com. (undated). Bigamy Law & Legal Definition. Retrieved April 30, 2011, from http://definitions.uslegal.com/b/bigamy.

  51. Walker, D. (1993). Feminism and free markets: Friends or foes? Policy Archive, http://www.policyarchive.org/handle/10207/bitstreams/12789.pdf.

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Portillo, J., Block, W.E. Anti-Discrimination Laws: Undermining Our Rights. J Bus Ethics 109, 209–217 (2012). https://doi.org/10.1007/s10551-011-1120-6

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Keywords

  • Discrimination
  • Rights
  • Free association