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Employment at Will

April 28, 2004

Tags Legal SystemMedia and CultureU.S. EconomyU.S. HistoryPhilosophy and MethodologyPolitical Theory

The self-identified champions of civil rights have prided themselves, for almost half of a century, on the violent eradication of 'employment discrimination' and pledge allegiance to affirmative action initiatives and other government imposed programs of the like.

A recent headline about opposition to a new Louisiana state job application presents the perfect basis on which to explain the ridiculousness of the concept of 'employment discrimination,' the difference between state and market approaches to discrimination, the burdens that such a policy imposes on market participants, the inherently aggressive nature of addressing the issue through public policy, and how anti-discrimination legislation promotes slavery.

Louisiana Attorney General Charles Foti introduced a new job application form to the state's Department of Justice that has come under much scrutiny by labor lawyers. The revised application, specifically tailored to applicants to the agency, consists of some questions not typically included on job forms, such as inquiries about race, ethnic background, height, weight, eye and hair color, tattoos and other distinguishable body markings, and a list of the applicant's dependents and respective relationships, among other items. 

"Foti is very, very interested in getting to know the people who work for him; he wants to know them as humans and people," a spokesman said. "He wants to make sure we have diversity at the agency."

According to officials with the Equal Employment Opportunity Commission, although employers are not expressly prohibited from asking for such information on applications, they are advised not to do so, so as to not be vulnerable to future discrimination charges. One New Orleans-based employment attorney says that many employers do need to obtain such potentially problematic information for reporting purposes to the federal government, but that often times such information is requested on a separate form to be voluntarily filled out. 

In fact, he continues, it should be noted that a large portion of state employees are considered 'unclassified,' therefore employment procedures stipulated by state civil service laws and regulations do not necessarily pertain to this 40% of civil servants.  While state agencies hiring 'classified' personnel use one standard job application, those hiring 'unclassified' personnel, college faculty, employees of the Legislature and governor's office, the Justice Department, and political appointees, have their own hiring procedures and applications. 

Attorney General Foti and his staff are currently under heat from various special interest groups, commissions, and lawyers for alleged 'employment discrimination' as the application in question is being reviewed by a state board.

Demonizing 'preference,' a key characteristic of all human action, by identifying it as an intrinsic evil and labeling it 'discrimination,' is absurd on numerous grounds. This skewed vision does nothing short of steal an individual's most vital of liberties, their right to self-ownership.  (Unlike the interpersonal utility comparisons made by proponents of a redistributive welfare state, the fact that self-ownership is the most acclaimed of freedoms is a priori, for attempting to deny it is a performative contradiction.) 

The new job application presented by Louisiana's Attorney General, although currently under fire by the Equal Employment Opportunity Commission and similar groups, is merely a demonstration of that party's preference.  Regardless of whether or not the questionnaire is intended to keep individuals of a particular demographic out of or in employment with the agency, in the market, such an act is merely an exercise of an individual's right to themselves and their property. Consequently, just as an employer may choose with whom they wish to purchase services so to can an employee choose to whom they wish to sell their services. 


"Neither slavery nor involuntary servitude...shall exist within the United States" — 13th amendment to the US Constitution

Obviously, given that this issue has arisen in the public sector, an entirely different spin is placed on the matter. Specifically, the case, as with all matters concerning government, involves neither individual private property nor the potential for profit. Therefore, there are both discrepancies about the decisions being made and who is legitimately empowered to make them, as well as a lack of recognizable measures of outcomes given the absence of profit and loss signals. 

The economics of discrimination in the market maintain that such unmerited practices are quite risky, costly, and could prove to be detrimental. In point of fact, practicing any form of discrimination inherently siphons the potential pool of available options, which, in the case of some unmerited 'employment discrimination,' may include productive employees. Hence, continuing to pursue such activities, ceteris paribus, will lead to lower profits, and eventually a business's demise.

Economic law lends further insight to the issue of 'employment discrimination' and the policies constructed to eliminate it in regard to the burdens it places on market participants. It is held within both sound theory and empirical evidence that markets only falter when they have been unnaturally constrained. When individuals are forced to employ, or interact with, other individuals they do not deem fit for a position, or a trade, qualified, or preferred, individuals are pushed out of the market. Concerning production, capacity may not be realized, thereby resulting in massive opportunity costs as well as additional expenses.

These are not merely burdensome for employers, but the market as a whole suffers—there may be a decline in quality or fewer consumer goods available, both of which are the result of misallocated resources. Anytime artificial mechanisms are imposed on the market individuals alter their decisions so as to accommodate for them, which inevitably results in these misallocations that ultimately impoverish the market. 

The single legislative article pertaining to 'employment discrimination' that has most impaired the market is the Civil Rights Act of 1964, for in the wake of this legislation came such inventions as the Equal Employment Opportunity Commission and affirmative action. Such policies indeed violently rob individuals, under a threat of force, of their right to their property and mutually beneficial exchanges of that property. 

But an aspect of anti-discrimination public policy that is probably overlooked by many of its opponents, and would most certainly be denied by its supporters, is that a consistent application of the laws is legalized slavery. Throughout recorded history, and notably within the United States until the War of Northern Aggression, individuals have been enslaved. Just as the slave on the nineteenth-century plantation was involuntarily held and forced to work under the command of his owner, so to is the twenty-first century business owner coercively ordered to employ an individual against his will.

A fair and equitable application of the law would see to it that every individual is entitled to the services or property of every other individual. This is because in every transaction sellers are buyers and buyers are sellers, employers purchase the labor sold by employees with wages while employees purchase wages sold by the employer with labor.

Therefore, by the logic of laws addressing 'employment discrimination,' any business owner could indeed enslave an individual they wish to acquire labor from who does not wish to sell it to them, because that individual has allegedly discriminated against them. 

Such is the following reductio ad absurdum: Individual A, having quality B, is to be employed by an allegedly discriminatory employer, C, according to some anti-discrimination legislation.  Likewise, Individual D is required to work for Employer E, having quality F, because D allegedly discriminated against E in not seeking to trade with E because of E's quality F.

'Employment discrimination', like all of the other fabrications of market critics, is nothing short of a bastardization of the exercise of individual property rights. It mandates a form of involuntary servitude expressly prohibited by the 13th amendment to the US Constitution. Discrimination, or the demonstration of preference, is merely the acting out on some distinguishable property. 

As Emile Durkheim, the father of sociology, a discipline composed almost entirely of market critics, identifies it, preference is the 'aesthetic property of the modern individual', and is arguably the definitive manifestation of individual self-ownership.  The latest debate over a Louisiana state job application delineates the absurdity of the very idea of the matter, and proper economic and libertarian analyses of public policy addressing 'employment discrimination' does nothing less than refute its very foundations.

What kind of information would be requested on job market applications? There is no way to know apart from real market experience. Some questions would be considered invasive while other questions would be seen as essential. It would be up to the market, not the government, to decide.

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Erich Mattei is an economics major at Loyola University of New Orleans. ehmattei@loyno.eduSee his archive. Comment on this article on the blog.


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