Discrimination and Self-Expression

dblack

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I'd like to talk about the validity of economic discrimination as a means of public protest. In particular, I'm concerned with the impact of anti-discrimination laws on our ability to express our disapproval of groups or values that we find repugnant.

As an example, let's imagine a service provider who is adamantly anti-war. Federal law establishes 'veteran status' as a protected class. If this service provider refused to work for veterans, to express her opposition to those who participate in wars, she'd be legally culpable and subject to penalties. Is this right? How is this any different than boycotting a business whose views don't align with yours? Should boycotts based on protected classes also be banned?

Alternately, what about similar discrimination based on traits not yet on the protected classes list. Should an employer be allowed to refuse employment based on the political views of employees? Should the Democratic party be allowed to discriminate against potential employees based on their political views? Should Planned Parenthood be required to provide equal employment opportunity for someone who is adamantly opposed to abortion?
 

warf

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I'd like to talk about the validity of economic discrimination as a means of public protest. In particular, I'm concerned with the impact of anti-discrimination laws on our ability to express our disapproval of groups or values that we find repugnant.

As an example, let's imagine a service provider who is adamantly anti-war. Federal law establishes 'veteran status' as a protected class. If this service provider refused to work for veterans, to express her opposition to those who participate in wars, she'd be legally culpable and subject to penalties. Is this right? How is this any different than boycotting a business whose views don't align with yours? Should boycotts based on protected classes also be banned?

Alternately, what about similar discrimination based on traits not yet on the protected classes list. Should an employer be allowed to refuse employment based on the political views of employees? Should the Democratic party be allowed to discriminate against potential employees based on their political views? Should Planned Parenthood be required to provide equal employment opportunity for someone who is adamantly opposed to abortion?
A business open to, and serving the public, must serve all the public.

If you want to discriminate you can't be in business.

A boycott is a decision by a person of where to spend their money. They can't be banned.
Why would an adamant opponent of abortion want to work at Planned Parenthood? Management would naturally assume they were there to sabotage or disrupt the operation.

In California an employer can refuse to hire or fire anyone for any reason without explanation.

They get into trouble when they express a reason for the termination or refusal that violates the law.

No reason-good. Bad reason-bad.
 

C_Clayton_Jones

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“If this service provider refused to work for veterans, to express her opposition to those who participate in wars, she'd be legally culpable and subject to penalties. Is this right? How is this any different than boycotting a business whose views don't align with yours?

The former exists in the context of public sector civil law, a function of government that writes and administers the laws in civil courts, which in turn authorize civil penalties. The latter exists in the context of the private sector, absent any government involvement, where indeed private citizens are expressing themselves as is their right to do in a free and democratic society.

“Should the Democratic party be allowed to discriminate against potential employees based on their political views? Should Planned Parenthood be required to provide equal employment opportunity for someone who is adamantly opposed to abortion?”

The Democratic Party and Planned Parenthood are private entities at liberty to determine the makeup of their membership (see: BSA v. Dale (2000)); unlike government they are not subject to Constitutional prohibitions with regard to discrimination

“Should an employer be allowed to refuse employment based on the political views of employees?”

That depends on what constitutes 'political views,' and what would occasion an employer to learn of an employee's 'political views.' The vast majority of job applicants never learn why they weren't hired for a given position, where the employer's usual response is that a 'more qualified' candidate was selected. Even in cases of employment discrimination involving race, there must first be evidence of that discrimination in order for a claim to have merit and be valid. And if an employee engages in political activism that is disruptive to his employer's business, the employee can be terminated as a consequence of his disruptive behavior, having nothing to do with his 'political views.'

“But what about private businesses that elect to not serve certain classes of customers, they're not part of government or the public sector, and not subject to Constitutional prohibitions, why aren't they allowed to determine the makeup of their clientele as the Democratic Party and Planned Parenthood are at liberty to determine the makeup of their membership?”

State and local governments are authorized by the Commerce Clause to enact public accommodations laws pursuant to necessary and proper regulatory policy, to ensure the integrity of the local market and that of all other interrelated markets. The primary focus and intent of public accommodations laws is regulatory, not anti-discrimination; and that public accommodations laws might have the collateral benefit of prohibiting discrimination comports with Constitutional jurisprudence (see Heart of AtlantaMotelv. U.S (1964)).
 
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dblack

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I'd like to talk about the validity of economic discrimination as a means of public protest. In particular, I'm concerned with the impact of anti-discrimination laws on our ability to express our disapproval of groups or values that we find repugnant.

As an example, let's imagine a service provider who is adamantly anti-war. Federal law establishes 'veteran status' as a protected class. If this service provider refused to work for veterans, to express her opposition to those who participate in wars, she'd be legally culpable and subject to penalties. Is this right? How is this any different than boycotting a business whose views don't align with yours? Should boycotts based on protected classes also be banned?

Alternately, what about similar discrimination based on traits not yet on the protected classes list. Should an employer be allowed to refuse employment based on the political views of employees? Should the Democratic party be allowed to discriminate against potential employees based on their political views? Should Planned Parenthood be required to provide equal employment opportunity for someone who is adamantly opposed to abortion?
A business open to, and serving the public, must serve all the public.

If you want to discriminate you can't be in business.
Yeah. That's the current state of the law, but is it right? Does it make sense in terms of protecting liberty?

A boycott is a decision by a person of where to spend their money. They can't be banned.
Sure it could. Especially at the level organized efforts. What about if conservatives promoted widespread boycotts of Muslim businesses? Arguably, that could do far more damage than one business refusing to serve Muslims.

Why would an adamant opponent of abortion want to work at Planned Parenthood? Management would naturally assume they were there to sabotage or disrupt the operation.
Because they need a job.

In California an employer can refuse to hire or fire anyone for any reason without explanation.

They get into trouble when they express a reason for the termination or refusal that violates the law.

No reason-good. Bad reason-bad.
That's the kind of silly result that should prompt all of us to question these laws.
 
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dblack

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“If this service provider refused to work for veterans, to express her opposition to those who participate in wars, she'd be legally culpable and subject to penalties. Is this right? How is this any different than boycotting a business whose views don't align with yours?

The former exists in the context of public sector civil law, a function of government that writes and administers the laws in civil courts, which in turn authorize civil penalties. The latter exists in the context of the private sector, absent any government involvement, where indeed private citizens are expressing themselves as is their right to do in a free and democratic society.
I'm not sure what you're trying to say here. Should she be allowed to discriminate against the veteran based on her opposition to war? If not, why not?

“Should the Democratic party be allowed to discriminate against potential employees based on their political views? Should Planned Parenthood be required to provide equal employment opportunity for someone who is adamantly opposed to abortion?”

The Democratic Party and Planned Parenthood are private entities at liberty to determine the makeup of their membership (see: BSA v. Dale (2000)); unlike government they are not subject to Constitutional prohibitions with regard to discrimination.
Not when it comes to protected classes.

“Should an employer be allowed to refuse employment based on the political views of employees?”

That depends on what constitutes 'political views,' and what would occasion an employer to learn of an employee's 'political views.'
And that's what I'm questioning. Do we really want government responsible for second-guessing our economic decisions, to decide if they were based on "good reasons" or not?

The vast majority of job applicants never learn why they weren't hired for a given position, where the employer's usual response is that a 'more qualified' candidate was selected. Even in cases of employment discrimination involving race, there must first be evidence of that discrimination in order for a claim to have merit and be valid. And if an employee engages in political activism that is disruptive to his employer's business, the employee can be terminated as a consequence of his disruptive behavior, having nothing to do with his 'political views.'
Again, you're missing the point of the thread. I'm asking if they should have the right to do so overtly, to make a political statement. If customers can make these kinds of statements in their purchasing decisions, or if employees can picket and strike against employers for political reasons, why can't businesses make similar protests in their choices?

Also, before you go there, I'm not interested in prevailing case law. I'm reasonably aware of the current legal precedent regarding these issues.
 
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warf

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I think the sit - in strikers settled this during the civil rights struggle in the 60's.

If you open a business to serve the public you must serve ALL the public.

That's the law and that's how it works in a properly functioning society.
 

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