Force, Fraud, and Other Stuff
Jason Kuznicki on Oct 27th 2007
Commenter Explicit Atheist writes,
Anti-pollution laws, anti-fraud laws, etc. are also “liberty infringing and litigation encouraging laws”. I don’t think the liberty to discriminate when conducting commercial business or employment based on race, creed, gender, etc. is a liberty worthy of any more respect than the “liberty” to damage the environment or cheat potential and actual customers. These are not victimless crimes, they are all crimes with real victims and don’t belong in the category of protected liberties.
To me there is much that is both right and wrong in this.
First of all, libertarian political theory holds that we should ignore victimless crimes and punish only those crimes that have actual victims. But these crimes certainly include fraud and, yes, pollution.
Here’s why: Property transfers (say, me dumping mercury into your pond) are only legitimate if both sides of the transaction agree. Most often, the party suffering from pollution hasn’t consented to the transfer, and thus he has a presumptively legitimate case. As to fraud, a transaction can’t be consensual if it’s based on knowingly false information, as it would be in any act of fraud. Both pollution and fraud fit very well into libertarian theory.
I’d submit, though, that laws against these acts do not infringe on the liberty, properly understood, of the polluter or of the con artist. This is because pollution and fraud violate the rights of their victims — and there can be no “right” to violate the rights of another. Any system of liberty has to be internally consistent, and a liberty to violate the liberty of others can’t be consistent in this way. And thus, while laws against pollution and fraud may encourage litigation, there isn’t any great problem here: Litigation is a lesser evil than vigilante justice, or than letting these grievances go unpunished.
The liberty to discriminate in business is a lot more complicated than that, at least if we are trying to provide an abstract or theoretical account of why we are doing what we’re doing with these laws. It’s a subject I’ve recently been discussing in this comments thread.
In it, I discuss some of the not-purely-libertarian justifications for antidiscrimination law, and I’m not ready to completely rule them out. As I see them, they may yield some surprisingly out of the mainstream conclusions if they are applied consistently, but this isn’t a decisive argument against them either. It’s a reason, though, to proceed very cautiously.
To illustrate the difficulty, consider the following situation: Imagine that I’m looking for a job. “Sorry,” an employer tells me. “We think you’re very well qualified, but we never hire homosexuals.”
Have I been victimized in this situation? I don’t think that I have been. I’m certainly not any worse off than I was previously. I still don’t have a job, but this isn’t a step down in my condition. It’s precisely where I started out, and it’s very hard to say that I have been a victim of anything other than a hurt feeling. Governments don’t exist to protect you against hurt feelings. They don’t exist to protect anyone’s bruised sense of entitlement.
If a sense of entitlement coupled with a sufficient political base were all that it took to authorize transfers of this type, then there would be nothing improper, for example, in an electoral majority authorizing Congress to turn over various assets to the politically privileged or well-connected. And then — why stop at jobs? Perhaps Nancy Pelosi would like to own Disneyland, or Dick Cheney could get a bill passed that would deed him the entire state of Ohio. Forced economic redistribution is the real game we’re playing at here, and it’s important to recognize it for what it is: It’s an abrogation of the idea of private property, and an admission that in more and more respects, this property belongs only to the state.
This is not to say that there are no justifications for laws against discrimination, but only that these laws require something other than a classical liberal or libertarian account of justice. They are also exceedingly dangerous and should be used with extreme caution. And finally, if the situation can be righted without a law of this type, then it is probably better that we as a society go ahead and make things right without the help of the state. Think this can’t happen for homosexuals? It’s already happening. The law is almost certainly not necessary to complete the process.
(Incidentally, in a hypothetical world entirely or almost entirely free of prejudice against racial or sexual minorities, a purely libertarian approach to justice in hirings and firings would probably be sufficient all by itself, wouldn’t it? And if so, then just how free of prejudice do we have to be before the libertarian account can start to stand on its own? Before you say “it never will,” do consider that today we have no laws prohibiting discrimination against the left-handed, or vegetarians, or people who have read novels by Chesterton. The libertarian approach works perfectly well for them, because prejudice is so rarely acted upon in these areas. How much is enough to tip the scales, and who decides, and by what method? And if we can eradicate prejudice by non-state methods, isn’t this obviously preferable?)
Filed in The Bureau
Yes, of course the homosexual has been victimized by being denied an equal opportunity to compete for the available employment opportunities relative to similarly qualified heterosexuals. If you don’t see that, if all you see is a bruised sense of entitlement, then I don’t see how we can even have a sensible discussion here because your argument depends on the denial of a fundamental fact.
The private property aspect makes me side against discrimination being illegal in the private sector. Despite the fact that commercial and employment activity is occuring, businesses still constitute private property. People should not have an obligation to associate with those they don’t desire to associate with in dealing with their own property. In my mind, this should outweigh any unfairness associated with discrimination.
I think that laws barring discrimination would fit better in a libertarian context if the discrimination were not criminal, and instead merely disallowed the government from providing any services other than the classical protections against force and fraud.
How many businesses would discriminate if they thereby risked being denied:
- bankruptcy protections
- limited liability status
- tax windfalls
- equal footing in seeking government contracts?
There are elements of our government that exceed the accepted libertarian constraints on government. Without getting too far in that argument here, the point can be made that some services may be provided by the government at the approval of its citizens. And therefore, those citizens can demand that discriminatory business practices may be answered by exclusion from those services. This would be both effective and fair.
There are limits to anti-discrimination laws. It doesn’t generally apply to very small businesses. I think you need at least 15 employees before it is applicable with possibly some exceptions. There is also a practical problem, it is difficult to prove except in the more extreme cases and with larger businesses (hundreds of employees) where it may be possible to show a pattern that can be difficult to explain given the evidence regarding relative employee productivity absent discriminatory business practices.
I don’t see the private property argument as having much merit, employment and commerce are public goods, we can’t live on bread alone, we have to have shoes and shelter and food, and citizens are entitled to have career and trade opportunities commensurate with their talents and efforts. If an employer doesn’t want to hire gays because he doesn’t want to associate with gays then that employer should be legally forced to be an employee instead. Employees don’t generally get to choose who our fellow employees are, there is no such as thing as freedom of association for employees, and this notion that employers have this special and unique right that employees do not have to not associate with people whose beliefs or lifestyles, which are unrelated to the work, they don’t personally like is just complete, absolute nonsense. I don’t have any sympathy at all for this whining, self-centered “I am entitled to work only with people whose lifestlyes and beliefs I agree with” elitist employers.
Also, putting aside the unfairness to the targets of the discrimination, free enterprise works better in principle when the market for employees is competitive based on employee merit, a free entprise principle which is undermined the more employers use criteria unrelated to the potential and productiveness of the employees to do the work.
Let’s consider two scenarios.
One: I am without a job. I apply for a job for which I am qualified. “We don’t hire homosexuals,” the employer tells me. At the end of the interview, I am not worse off than I was before. Am I? I’m still without a job, but aside from a hurt feeling, I don’t see how I’ve been hurt. My position relative to others is precisely unchanged.
Two: I have a job at which my employer does not know I’m gay. He finds out and fires me solely for this reason, but he does pay me all the salary that he owes me. In what way does he owe me anything more? Again, I don’t see it.
To argue that the employer owes me more in either of these situations is to argue that people hostile to me owe me a living. This takes us well beyond a basic libertarian sense of justice. It requires, I think, Frederick Douglass’s notion of the whole of the people acting as though it were a state — that is, it requires that there be discrimination on such a massive scale that even the non-bigots cannot associate with each other and cannot find themselves free to exercise their non-bigotry.
Douglass’s condition was clearly evident in the Jim Crow South, not only in the laws supporting segregation, but in the pervasiveness of voluntary, private segregation. It’s not nearly so evident today as regards homosexuals. Indeed, the non-bigots are pretty much running the show at the Fortune 500, and these companies set the tone for all the rest.
Now for a couple of particulars:
employment and commerce are public goods
I suggest you don’t have a good grasp of what this means. A public good is one such that it is not profitable for any private entity to offer it in the marketplace and thus the government must do it instead. Clearly this isn’t the case, since employers are still offering jobs.
Employees don’t generally get to choose who our fellow employees are
Yes we do. Within a broad set of tradeoffs, we do. It happens all the time that people quit their jobs and take new ones because they don’t care for their work environment or their co-workers. Indeed, I’d suggest that the typical employee has more potential sources of employment than a typical employer has potential employees when he tries to fill a position. It’s just he chooses not to explore nearly all of those opportunities, which is how it should be.
“If an employer doesn’t want to hire gays because he doesn’t want to associate with gays then that employer should be legally forced to be an employee instead.”
What nonsense. Employers have rights that employees don’t have because employers own the business. I don’t see what’s so hard to understand about that.
# stevenon 31 Oct 2007 at 11:13 am
“What nonsense. Employers have rights that employees don’t have because employers own the business. I don’t see what’s so hard to understand about that.”
A business is about other people, not just the owner, and is thus not the same as owning a table. Owning a business puts more responsibility on the business owner for the business’ dealings with those other people. A business is a legal entity, it is subject to public scrutiny regarding consumer fraud, environmental damage, finances, etc., including discrimination against employees or potential employees and customers based on non-business related criteria. These responsibilities are assumed by the owner of the business just like a manager assumes responsibilities in the workplace that a non-manager doesn’t assume. The nonsense here is that an owner has complete freedom to use his business as an instrument to selectively punish people, whether employees or customers, for unrelated beliefs or activities that the business owner disagrees with. The business owner can use the profits of his business as he sees fit, and the business owner has lots of decisions and choices to make that are his and his alone, but just because he owns the business doesn’t mean he can discriminate in hiring, firing, or serving customer like someone who owns a table has complete freedom to paint a table.
# Jason Kuznickion 31 Oct 2007 at 6:02 am
“One: I am without a job. I apply for a job for which I am qualified. “We don’t hire homosexuals,” the employer tells me. At the end of the interview, I am not worse off than I was before. Am I? I’m still without a job, but aside from a hurt feeling, I don’t see how I’ve been hurt. My position relative to others is precisely unchanged.”
Of course all homosexuals are now in an inferior position relative to all similarly qualified heterosexuals who seek those jobs which are only reserved for heterosexuals. More generally, all employment which is awarded only to people who meet non-work related conditions such as this as a condition for employment place those people who don’t meet those non-work related conditions at a relative disadvantage. This is a fact, you are denying a fact, and since your argument is based on denying this fact it is ludicrous.
# Jason Kuznickion 31 Oct 2007 at 6:02 am
“Two: I have a job at which my employer does not know I’m gay. He finds out and fires me solely for this reason, but he does pay me all the salary that he owes me. In what way does he owe me anything more? Again, I don’t see it. ”
What I don’t see is how your being gay has any relevance to your status as an employee of his business. The employer is misusing his business to penalize you for activities, or just for your public revelation of sexual orientation, that have no bearing on his business (assuming this is not the sex business and not allowing lost business due to prejudiced customers as a business justification). If his business is large enough to be subject to anti-discrimination laws then surely you are entitled to request re-instatement as an employee with back pay for any lost wages.
More generally, the notion that legally prohibiting employers from firing employees for the employees non work-related beliefs or lifestyles is an unfair or unjust infringement of a business owner’s liberty sounds like completely upside down ethics to me. It is the employee who is being victimized in a tangible way by the employer’s unethical conduct here. The anti-discrimination legal recourse is thus rectifying that injustice. I have heard no argument from you that refutes this.
# Jason Kuznickion 31 Oct 2007 at 6:02 am
“To argue that the employer owes me more in either of these situations is to argue that people hostile to me owe me a living. This takes us well beyond a basic libertarian sense of justice. It requires, I think, Frederick Douglass’s notion of the whole of the people acting as though it were a state — that is, it requires that there be discrimination on such a massive scale that even the non-bigots cannot associate with each other and cannot find themselves free to exercise their non-bigotry.”
No, this is completely backwards. There is no requirement that people who work together in the same business be friends or like each other. There is a requirement that people who work together leave whatever contempt they may have for each other at the door before they enter the building. Any employee who insists on openly exhibiting hostility towards any other employee for non-work related reasons such as disagreement regarding personal beliefs or lifestyles SHOULD BE FIRED for conduct contrary to the interest of the business. If it is the employer who refuses to leave such hostility at the door when he/she enters the building then it is the employer who needs to be fired, not the employee.
# Jason Kuznickion 31 Oct 2007 at 6:02 am
“Yes we do. Within a broad set of tradeoffs, we do. It happens all the time that people quit their jobs and take new ones because they don’t care for their work environment or their co-workers. Indeed, I’d suggest that the typical employee has more potential sources of employment than a typical employer has potential employees when he tries to fill a position. It’s just he chooses not to explore nearly all of those opportunities, which is how it should be. ”
No we don’t. I didn’t choose any of my fellow employees, this has been true even after I left jobs and got different jobs, and I doubt very much that most employees get to choose who their fellow employees are as you are advocating employers should be free to do. Freedom of association is about who we associate with outside of work like freedom of expression is about what we say outside of work. We don’t get to talk freely about non-work topics (or even work related topics as directed by management) when we are working and we don’t get to freely choose who we associate with when we are working, as either employees or as employers.
I think all I can say at this point is that we disagree on some pretty fundamental things here. I understand that you would impose certain constraints on employers because you would prefer that they not act in a certain way. How this relates to the rights of employees hasn’t yet been demonstrated.
Your “requirement that people who work together leave whatever contempt they may have for each other at the door before they enter the building” is invented, pure and simple. The freedom of association, meanwhile, means that employment at will — long recognized by the common law — is the preferred setup. Exceptions may exist, but they have a very high standard to meet, and with anti-gay prejudice visibly crumbling all around us, there is hardly any need for a law to get rid of it.
Employers who fire employees because they dislike the employees’ beliefs or lifestyle are clearly and intentionally disadvantaging those employees for having such beliefs or lifestyle. Jason has not once adequately explained how such discriminatory hiring and firing doesn’t have a potentially substantial negative impact on the people who loses all of the benefits they derive from employment (income, pension, insurance, etc.) or who lose the opportunity to even procure the employment or how the substantial negative impact of losing employment and employment opportunities outweighs the trivial, virtually non-existent, so-called negative impact to the employer of being compelled to hire or continue to employ people whose non-work related beliefs or lifestyle that employer may disagree with but who are best qualified among the candidate employees or who, once hired, complete the work they are paid to complete properly and timely. Employers do not endorse the non work related beliefs or lifestyle of people simply by hiring and then not firing them.
Free association and free speech and the like have significant relevance to employee unions and business associations, but for the most part these principles are not applicable to the workplace, neither with regard to what employees and employers say to the other employees or to the customers nor with regard to freedom to choose which employees or customers the employee and employer associates with. This is obvious and Jason has not refuted this even though he tries to argue against it. What libertarians are arguing for here is a double standard, something akin to doing with away with traffic and moving violations for drivers who own the vehicle but not for drivers who don’t own the vehicle. Ownership is irrelevant to the applicability of vehicle traffic and moving violations and it is irrelevant to the applicability of business anti-fraud, anti-pollution and anti-discrimination laws, all of which redress genuine and real social problems that tangibly harm people.
Now it is true that the law doesn’t always agree with my argument, just like the law doesn’t always agree with Jason’s argument, so Jason is being somewhat disingenuous by citing the law as being against me to try to give his argument the appearance of being better. The law already protects against discrimination for creed/religion, gender, race, and the like, already recognizes that free association and free expression and the like are substantially limited in the workplace context. Also, I think we both agree that there are limitations and exceptions. Small businesses are mostly exempt from anti-discrimination laws and this exemption is reasonable and should be retained.
I am an atheist. I know that lots of people strongly hold harsh negative stereotypes about atheists that are false. I am convinced that one reason that many atheists are in the closet about their atheism is that they have justified fears that if they publically reveal their atheism it will negatively impact their careers. So we have this circle of ignorance, intolerance, and silence that is self-reinforcing and self-perpetuating.
And what is the substance behind this assertion of protecting employer’s liberty to refuse to hire and to fire their employees for non-work related reasons? It seems to me that when we grasp for the substance of what is being protected here under the “employer’s liberty” rubric we find dogmatism, fanatacism, extremism and bigotry. Because that is usually what motivates the employers that refuse to hire or to fire people for no other reason than honest disagreement with those people over their non work-related beliefs or lifestyle. OK, some people really have ugly beliefs and lifestyles, they want to harm innocent people, they advocate harming innocent people, they strive to harm innocent people, I wouldn’t want to pay them a salary, I wouldn’t find anyone guilty for refusing to hire such people of for firing such people once they found out, but that is not what we are talking about here and you know that.
At the risk of drawing out this discussion even further, I’ll just respond to one more point:
When you agree to work somewhere, you agree to abide by the standards and practices of that workplace. This is a free choice, and you’ve already chosen it. That’s where your freedom of speech is. It’s not abrogated, it’s just pledged in a certain direction, with your continued employment as the collateral.
You have yet to even begin to show how someone who hates me owes me a living. Until you do that, you’re not getting anywhere. Sure, it would be nice if atheists and gays (I happen to be both) were never treated with contempt. But it’s not my choice to decide what other people do with their property or with their businesses.
Why not? Well…. Now that we have the power to regulate the private property of others, we want to outlaw workplace discrimination. Perhaps this sounds noble to us. But if they, the bigots, had the power to regulate the private property of others, they could forbid hiring gays or atheists. They could forbid serving them in bars and restaurants. They could forbid gay or atheist literature from being sold… and all of this would be by the very same principle you champion: “I find it repugnant, and therefore I will forbid it.”
The way to peace between these warring camps is private property and employment at will. Anything else is going to incur some very significant costs in terms of individual liberty, and set a potentially bad precedent for the future. Not worth it in this case, I think.
Jason Kuznickion 02 Nov 2007 at 7:19 am
‘Why not? Well…. Now that we have the power to regulate the private property of others, we want to outlaw workplace discrimination. Perhaps this sounds noble to us. But if they, the bigots, had the power to regulate the private property of others, they could forbid hiring gays or atheists. They could forbid serving them in bars and restaurants. They could forbid gay or atheist literature from being sold… and all of this would be by the very same principle you champion: “I find it repugnant, and therefore I will forbid it.”’
This is like arguing we shouldn’t outlaw torture just on the grounds “I find it repugnant, and therefore I will forbid it” because if we do then if those who support torture had the power to regulate what governments do with the bodies of their citizens then they would require torture. Forbidding employment discrimination based on [i]non-work related[/i] beliefs and lifestyles doesn’t set a precedent that would justify requiring such discrimination anymore than forbidding torture sets a precedent that could then be used to justify requiring torture.
One more detail. I don’t disagree that there is a practical problem with counter reactions, but what I disagree with is the notion that we should avoid confronting a problem and sweep the problem under a rug or reduce the problem to a non-problem because of the risk of a counter-reaction. When we argue, we should argue from our hearts and minds on behalf what is right and against that which is wrong, all the more so when our perspective is a minority perspective, and we should do so openly to a general audience even if some in that general audience may take offense. That is how we make progress, we need to exhibit some confidence with our convictions and take that risk.
Explicit Atheist, you are comparing a violent physical act against a person (torture) with refusing to associate with a person (discrimination). That is just ridiculous.
Explicit Atheist, like many liberals, seem to think that those who need or want automatically deserve based on those desires.
He attemps to show that owning a business is unlike owning a table. They are exactly alike! They are private property held by an individual. If you have no right to a part of my table without my permission, then you have no right to a part of my business (i.e. a job) without my approval.
If I have no right to decide who will get to use my property, then I don’t fully own it. Who then does? Why, those who get to make the final decision: the government.
And this is exactly what the left wants: government intrusion so that they can gaurantee they get from each according to his abilities and give to each according to his needs.
I am also an atheist. Were I rejected from consideration for employment because of my lack of belief, I may be angry, and it would be unfair, but it certainly shouldn’t be illegal. Because the job doesn’t belong to me. I have no right to it.
When Explicit Atheist can explain why a prospective employee or customer has a right to the property of the business owner, then what he’s saying might hold water. Until then it is nothing more that his attemp to show that he knows better how to use someone’s property than they do.
Jason, I disagree with your assertion that someone who has been fired from his or her job has lost nothing.
Just being fired is a loss, of sorts, because it can make it more difficult to obtain future work. It’s a black mark againts the employee, something that has a negative impact on the worth of his labor in the same way that a degree or certification has a positive impact.
If that degree or certification is not earned in a legitimate manner, then an employee is perpetrating fraud on his employer (and you agree that fraud is a circumstance where legislation is appropriate). It therefore stand to reason that an employer who fires his employee for an illegitimate reason is also guilty of fraud.
Then, of course, the question becomes what is or isn’t a legitimate reason for firing an employee? I’d argue that most circumstances covered by antidiscrimination laws apply, if only because perspective employees are rarely told up front “We don’t hire queers here”.
addendum:
And any situation where the ‘We don’t hire queers here’ is prevelent enough to be implicitly understood is probably going to qualify under Douglass’s notion of people as a state.