Monday, January 12, 2009

The Libertarian's Dilemma

I was talking about this puzzle at work today with a couple of libertarians, and since I ran across this story I figured I'd pose it to the often libertarian-leaning regulars here.

A hotel in Nashville fires a guy explicitly for being gay. Should they be allowed to do so? If so, is the man's right to live his own life the way he wants threatened by inaction on the part of the government? If not, are companies' rights to make their own personnel decisions threatened? Here I'm assuming most liberals (myself included) would come down on the side of an anti-discrimination law while most conservatives would be against it. But it seems like this is an issue where two libertarian ideals conflict... what of it?


Mike said...

My initial inclination is to make the same statement about the firing as I did about the whole thing with the Boy Scouts being allowed to exclude gays, namely, that it's their right to do so. I believe Cracker Barrel also has an anti-gay policy in effect (and I'd stop eating there if the food weren't so damn good).

If the bottom line is to protect private entities, be they individuals or businesses, from unwanted intrusions by the government, then in this case I think you have to come down in favor of the hotel's right to fire the man, even though the firing itself is deplorable.

Like I said, that's just my initial instinct, and I'm happy to hear counterarguments.

Matthew B. Novak said...

My counter argument is that the food at Cracker Barrel is absolute crap.

Mike said...

And my counterargument to that is you're from Minnesota and in no position to discuss the merits of Southern cooking.

C'mon Matt, I expected you to come down firmly in favor of an anti-discrimination law. Don't let me down.

Jeff said...

My middle way - Cracker Barrel food is good, but not good enough for me to justify supporting homophobic d-bags. Didn't know that about Cracker Barrel, Mike, guess I'll have to go to some other restaurant.

Incidentally, I know Chick-Fil-A is run by right-wing Christians... do they have an equally anti-gay hiring policy?

Jeff said...

A short Google search reveals that Cracker Barrel shareholders said eff that to bigotry back in 2002. So my chicken fried steak is safe.

Matthew B. Novak said...

Oh, I do. I'd expand it to a wide variety of things too, not just sexual orientation. I think religion/creed should be protected, and family status for example. I'd make an exception that allows termination when [the person's protected status] prevents them from handling the essence of the job (thus, a Catholic probably could be fired from working at an abortion clinic, but probably couldn't be fired from a pharmacy for refusing to fill just a particular type of prescription).

But I figured since I wasn't a libertarian I'd just stick to the sidelines on this one.

Also, even though I'm from MN, I do have a well-developed palate. Yeah, that's right: I'm good at eating food. Also, living in VA, I've developed a wider knowledge of Southern food than I previously had. I've had some really good Southern cooking. Cracker Barrel does NOT fit that description.

Ben said...

The issue with Mike's stand is this: where does it stop? If an employer should be free to fire somebody because of their sexuality, why not because of their race?

Of course, I've had conservative friends who argue it's not like race....that they think conservative employers should have the right to not associate with people whose sexual practices they disagree with. To these friends (I'm thinking of one friend, in particular), it's no different from firing someone for engaging in adultry or interoffice sexual relationships.

But to get back to my original point, I suspect most people who comment on this blog would find homosexuality to be as immutable a characteristic as race. In which case, why is it okay for employers to discriminate on the basis of sexuality but not race?

Then again, one could go the other way and say "when should anti-discrimination laws end?" But I'll leave that analysis up to an actual libertarian.

Jacob Grier said...

I wouldn't say this is an example of libertarian ideals conflicting. From a "pure" libertarian point of view, freedom of contract and association trump any right not to be discriminated against by employers.

The more interesting question is when, if ever, these rights should be trumped. I think some libertarians are ok with exceptions made by the Civil Rights Act, for example, in part because it was a response to a long history of state-sanctioned oppression of blacks. Whether the same standard should apply to sexual orientation is certainly debatable.

I lean toward not expanding anti-discrimination laws because I value freedom of association very highly and do not like the government picking and choosing who is protected. Take the Mormon theater director who resigned from his job in California after it was revealed that he donated to a pro-Proposition 8 campaign. He left voluntarily, but given that he worked with many gay actors, do you think it would have been out of line for the theater to fire him if he hadn't?

Matt's pharmacy question is another example. In no other line of retail work would an employee refusing to sell one of his employer's products be tolerated. Why should pharmacy owners be forced to hire people who won't complete orders and who may embarrass customers asking for it?

It's tempting to pick and choose the characteristics for which we think people should not be discriminated against. And given human propensities toward tribalism, I'm not totally opposed to it either. But I don't think it's a road we should go down too often.

Matthew B. Novak said...

Here's a really interesting question, kind of spurred by Ben's point that homesexuality is as immutable as race (I agree):

Is there a difference between being fired for being homosexual and being fired for acting on that homosexuality? What if we take it a step further and a person openly embraces a flamboyant homosexuality and lives a lifestyle consistent therewith? Are those different circumstances that justify drawing a line between them?

I'm inclined to think they're different in a way, but I draw the line at protecting all 3, so... that's not an issue for me. But I wonder if it would be for some?

Jacob - you might be right that there's few (or no) other retail circumstances parallel to the pharmacist (though I can certainly concieve of tellers who would refuse to sell alcohol even though the store sells it), but there are plenty of service-oriented parallels, like taxi-drivers not carrying passengers with alcohol or doctors refusing to provide abortions.

But to answer your question of why they should be allowed to? Because it's more important that we respect people's creeds than it is that we fill a prescription at a certain pharmacy or make sure the alcohol-carrying passenger gets the first taxi.

Jacob Grier said...


Taxi drivers tend to buy their own cars and sign up with a dispatcher. I assume they've worked out their own agreements about that sort of thing, right? And if a dispatcher gets tired of one his guys turning down fares and pissing off customers carrying alcohol, do you not think he has the right to no longer do business with that taxi driver?

I am not sure what the circumstance is with doctors. Whatever the case, I don't think there should be laws governing private hospitals' decisions in that matter.

I am curious why you give such importance to respecting people's creeds given that much of this conversation has been about immutable characteristics, which religious belief is not. I don't find this a compelling argument or see any reason why I should particularly care about anyone's religious beliefs. If I'm an employer with a business to run I've more important things to worry about than whether my workers have religiously inspired beliefs about pork or alcohol or embryos. They can do the job or they can't or we can come to some kind of compromise, but I don't see how it's the government's business to force either of us to accommodate the other.

Put another way, here's how I respect people's religious beliefs: I don't think they should be enslaved into occupations that violate their creeds. Any issues with work they've taken on voluntarily is their problem.

Ben said...

There's some arguments out there that the 1st Amendment requires at least some accomadation of workers' religious beliefs, even if it interferes with work. I'm not exactly sure what the state of that theory is in the case law, but I think it's still good law.

Of course, if I remember correctly, that law only applied to public employers. Still, I wonder if the analysis to Jacob is different in that case.

I think the disagreement between Matt and Jacob may come down to freedom of religion and what that means. Does freedom of religion mean that someone has the right to go about without facing a certain degree of hardship because of their religious beliefs? If so, what's that degree.

And now that I think about it, I'm pretty sure the Civil Rights Act prohibits discrimination on the basis of religion, as well.

Anyways, Jacob - you say that, even as a libertarian, you think that government bans on racial discrimination in employment may be justified because of the long history of state-sanctioned oppression of blacks. How is that any different from the long history of state-sanctioned discrimination against homosexuals? I want to hear more than just "that's debateable." What do you mean by that?

Jacob Grier said...

By debatable, I mean that discrimination against African-Americans was uniquely pervasive and abhorent in American history. Gays have never been enslaved, denied the right to vote, placed into separate schools, or segregated on public property and common carriers, or lynched on the scale scene in the South in the early 1900s. Given how deep this discrimination ran, I think there's a strong case to be made that only government action could have changed it in a reasonable amount of time.

I don't want to diminish the suffering gays have endured, but it's generally been in the form of social ostracism rather than institutionalized and state sanctioned barriers. Where the state is involved -- whether in employment, forbidding marriages, or Don't Ask, Don't Tell -- I'm absolutely in favor of government taking steps to treat them equally.

Yet on the social side, I think gay's success in winning cultural acceptance in such a short amount of time is one of the remarkable stories of the late 20th century. There are always going to be dumbasses like the guy running this hotel, but with progress for gays doing so well on its own it's going to be hard to convince me that we should be coercing those who don't agree. That might, if anything, lead to even more rancor and serve as fodder for the Fred Phelps of the world. Let's just let the idiots be and take our business elsewhere.

Matthew B. Novak said...

Jacob -

The specific taxi situation I'm thinking of was a big deal at the Minneapolis/St. Paul airport, where the airport authority (a government agency I believe) actually passed a regulation that prevented taxi drivers from refusing fares on religious grounds. So you've got some government action there, which makes it more troubling.

I'll conceed that religious belief (I prefer creed, since that accurately captures a more expansive set of fervently-held positions, e.g. atheism), isn't quite immutable like race or sexual orientation, but in some ways it's even more essential to defining who a person is.

A creed is a set of beliefs/positions/ideas that a person holds so dear that they are, for all intents and purposes, unchangable. I seriously doubt you could just choose to start believing in God, and I know I couldn't honestly just stop. What makes creed so important is that these are beliefs that a person has, throughout their life, embraced in such a way that they help define the person. Just as a person is white or black, and there's no changing that, so too, a person is a person of [particular creed] or [other particular creed], and there's no changing that (with very rare exception).

Moving on... You wrote, They can do the job or they can't or we can come to some kind of compromise, but I don't see how it's the government's business to force either of us to accommodate the other.

I think you're actually onto something here. My position is that we should, in essence, mandate compromise, until the employee simply cannot complete the essence of the task. That should be where we draw the line, and let an employer terminate employment.

So let's take the pharmacist for example: what's the essence of being a pharmacist? Filling prescriptions. We wouldn't say it's filling anti-biotic prescriptions, or say that it's filling morning-after pill prescriptions, since neither of those captures the essence of the job. So, a pharmacist who fills all prescriptions except for morning-after pills is still able to accomplish the essence of their job, and shouldn't be fired for failure to fill that one type of prescription. Now, if they were Christian scientist, and opposed to a wider variety of medicines, they probably couldn't fulfill the essential task.

Or let's take taxi drivers. The essential task is picking up and dropping off fares. In this kind of situation the test of "essence of the job" is probably a more straight-forward percentage approach. Do they pick up more potential fares than they pass up? If they're just passing up a handful because they're carrying alcohol, then that's not so bad, they're still doing the essence of their job. But if they've got, for example, a religious opposition to females in public, and therefore pass up 50% or more of their potential fares, that's not acceptable, and they could be terminated.

I admit, this involves some detailed assessment of each and every career, and the essence thereof, but I think that's exactly the kind of thing our courts can handle on a case-by-case basis. And I think it's better than the alternative free contract approach, where an employer is free to fire employees at their whim for things like being homosexual or being of a certain creed. Employees have very little power, and people shouldn't be punished for immutable characteristics or deeply-held creeds.

I'd also be concerned about a big level of inconsistency between employers, such that one pharmacy might fire employees who won't fill morning-after pills, and one might retain/reward them. Leaving it to the employer's discretion allows for such maddening disparity.

Jacob Grier said...

I would actually turn that around. Look at the morning after example from the customer's perspective. At least for many women, I imagine going to the pharmacy and getting the morning after pill is a potentially embarrassing or awkward situation. Knowing there's a chance that the pharmacist could refuse to serve you and pass implicit judgment on you would only add to the anxiety. If I were a pharmacy owner who was ok with selling the morning after pill, this would concern me.

Alternatively, we could have a situation where people know in advance that some pharmacies, say CVS, will always serve them discreetly and professionally. Others, say Walgreens or a conservative local drug store, might not. This situation is far better from the consumers' perspective.

And as you know from our smoking ban discussions, I'm skeptical of basing policy on the supposed "essential" definitions of a job (that's such a Catholic way of thinking!). Having just returned from interviewing a cigar bar owner who laid off four employees last week only reinforces my view. But hey, at least those people are free to find jobs elsewhere where they can perform only their "essential" functions. I'm sure they're better off.

Matthew B. Novak said...

Jacob -

Even considering it from the perspective of a customer, and imagining some of the worst possible scenarios I can (small town, only one pharmacy, girl can't get morning-after pill, has to make other arrangements, etc.), I'd still take the importance of protecting a person's creed. I honestly think people have forgotten how important freedom of belief is; people don't flee their homes because they can't get prescriptions at the nearest pharmacy, or because they waited an extra minute for a taxi. They do flee so that they can live out their creed.

We've got to always keep the bigger picture in mind, and what really matters to people. Creed really matters. Consumer happiness is far, far below.

I understand that you are skeptical about basing policy on essential definitions (yeah, we can call it a "Catholic" way of thinking (and it is), but it's also a philosophically sound approach), but I really don't understand why. A court approaching each situation on a case-by-case basis could certainly do well in making these necessary assesments. Whether it's contracting parties or a neutral jury of peers or an experienced judicial authority, it's all just a judgment call of people, right? At least neutral jury members/judges can set a universal standard that's fair to employee and employer, and at the same time protect the important freedoms associated with a person's creed. Leaving it up to employers just allows for b.s. discrimination and no protection for what really matters.

As for the cigar bar layoffs... I'm afraid I didn't follow your point here. These weren't layoffs that were caused by restrictions on firing people for creed (after all, that is what I'm advocating here). These were layoffs caused by a recent smoking ban. Perhaps you're lumping all government activity together here, and seeing these layoffs as symptomatic of the kind of restrictions on free contract that I'm advocating, but there's certainly no causal relationship between what I'm advocating and the layoffs you're pointing to. And I've never been a defender of strict smoking bans that eliminate entirely the right to smoking. In fact, I've been a proponent of bans with well-crafted exceptions. This is, I suppose, the burden of the libertarian: pointing to a bad regulation is not an effective way to say regulation is bad. You've got to point out what's bad about each and every regulation individually. And the other side always has the ready response: "so we'll change the law".

And, to bring it all back around, that's kind of what I like about the "essence of the job" test I propose: it lets us appraise on a case-by-case basis what's really necessary in an employment situation, and hopefully avoids painting a regulation with too broad a stroke. Certainly that has some appeal, right?

Jacob Grier said...

Ah, sorry, that wasn't clear, or an exact parallel. I was referring to our disagreement as to whether serving drinks was the essential job of a bartender or, in some cases, serving drinks to smokers.

You bring up consumer happiness with regard to pharmacies, cabs, etc. I agree that, considered on its own, consumer happiness doesn't seem as important as respect for creed. But it is if you're the owner of a business, which is what I was getting at. For them, unhappy customers means failure.

And to reverse your example one more time, let's go back to that small town with one pharmacy. Let's say a feminist in that town raises the capital to start her own pharmacy with the explicit intent of making it a safe place for women to go for discreet, honest care. If one of her employees turns out to have religious objections to the morning after pill and refuses to serve it, that person is undermining the woman's business and her deeply personal reasons for starting it. I don't see why the employee's beliefs should trump the owner's simply because the former's are based on some mystical justification and the latter's are secular.

Matthew B. Novak said...

Let's take your feminist pharmacy example, because I think it perfectly illustrates where my idea works so well. In that situation we'd have a pharmacy where the essential function isn't simply to dispense prescriptions, but also to provide a safe place for women to get discreet, honest care. Heck, it's a whole pharmacy premised on additional principles. Presenting this situation to a court allows them to say, "wait, this is different than other pharmacies, so we will allow this pharmacy to fire people who refuse to fill prescriptions". There would of course be testimony and such (a mission statement of the pharmacy would make terrific evidence), and the court would have to be convinced that refusing to fill prescriptions undermined the business, but that really wouldn't be that hard to show. Thus, in that case, the essential nature of being an employee at this pharmacy is different than it is at other pharmacies, and the result is a different outcome with regard to terminating employees. Case-by-case determinations made by a court allow sensible terminations in cases like this, but prevent unfair and discriminatory terminations like the guy being fired for being homosexual. It's really the best of both worlds.

I think the same distinction can prove true for bars, such that some bars could have the essential job just being to serve drinks, whereas others could be more specifically tailored.

As for consumer happiness being relevant to owners... I guess ultimately I'm willing to say that if a business needs to discriminate on the basis of creed to succeed, then I'm willing to let it fail. But I also think we can allow for niche services (like the feminist pharmacy). I think that's a reasonable and fair compromise for business, especially considering how much more power employers generally have.

Also, part of the reason I use the term "creed" is because it isn't just about religious belief. A person's creed can be a deeply held secular belief too. What's relevant isn't the nature of the belief/position/ideal; what's relevant is the depth with which a person holds that belief/position/ideal. Thus, we wouldn't favor religious beliefs over secular ones, or anything along those lines.

Mike said...

You make a fair point, Matt, but I still like Cracker Barrel.

Also, my word verification is "matte", which is amusing.

Jeff said...

Matt, the pragmatist in me likes the idea of deciding these things on a case-by-case basis. Even so, we have to understand what "creed" encompasses. Do we include political beliefs in that statement? Since we seem to be including feminism, that seems like a reasonable deduction. Am I right here?

Also, is there a point at which respecting creed gets reduced to absurdity? If I say, as a pharmacist, that I have a deeply held belief that prevents me from entering data on a computer, and the employer would benefit by hiring someone with computer skills, is it okay to fire me and replace me with someone who can use the computer? Because let's face it, that creed is kinda silly. Is there a line to be drawn?

And Jacob, to what extent can we allow firings based on creed without opening the door to employer-based intimidation based on creed? That is, where do we draw the line between, say, firing someone just because they're Jewish and firing a Jewish person from the seafood counter because they can't serve half of their products?

Ben said...

Matt, I'm getting waaaaay off-topic here, especially since you've got a good debate going with Jacob.....but I still think you're wrong to say one's creed is immutable, or anything close. Does someone change their religious (or irreligious) convictions as often or as easily as, say, one changes a favorite cereal? Of course not. But a survey discussed in the NY Times last year found that about a quarter of American adults leave the religion of their childhood for some other religion or no religion. (44 percent if you count changing from one Protestant denomination to another...a category which would include me. Don't know if the survey made the - IMHO, incorrect - assumption that switches among Protestant and Catholic and Orthodox Christians constitute switching religion.) As an evangelical Protestant, I'm part of a movement dedicated in large part to the idea that people can and do change their religious beliefs.

So even if one's creed is central to one's identity, I have a hard time treating it as immutable. Freedom of religion is a central value to our nation, but not because it's immutable.

Jacob Grier said...

Way to take us off topic, Ben! But you raise a good point. It has always struck me as insulting to religious people to treat their faith as immutable. By arguing with them or taking their ideas seriously I show them the respect of being open to reasoning and reconsideration, even when we disagree. (I realize that's not exactly what Matt's saying, just wanted to throw it out there.)

Matt, at this point I think our disagreement just comes down to how much faith we have in the political process. To use the smoking ban example, we certainly could imagine courts distinguishing between businesses to which smoking is central and ones to which it is incidental, but I have never seen that happen. What happens is people just get screwed. Your pharmacy example seems idealized, too. Entrepreneurs should have to add writing an ideological mission statement to their businesses if they want to win in hypothetical court challenges years down the line? No one seriously operates that way.

Jeff, I don't have a good answer to your question. The bottom line is that I prefer simple, clear cut rules that people can plan around to vague judicial decisions that could be endlessly litigated. I'm also willing to tolerate some degree of religious discrimination in private businesses. How best to balance the interest in simplicity and freedom of association with a preference for non-discrimination is not something I have an obvious to.

Matthew B. Novak said...

Oooh, ooh, ooh! I have responses. I'll get to them. I promise. I've just gotten really busy all of a sudden. They'll be up soon, I promise. Not tonight, but soon.

Matthew B. Novak said...

Jeff -

I suppose I could include political beliefs in "creed". It's really going to vary from person to person, though I'd say an individual's theistic views are certainly encompassed. I might rethink this, to include a more limited set of things, but I think creed turns more on the essential way the person identifies themselves than on what that identity encompases.

There really isn't a point where respecting creed becomes absurd in my mind, because it's all going to turn on two questions:
1. Is this a person's sincerely held creed? It's not hard to imagine someone saying their creed contains some silly thing to get out of work they don't like (like not entering data on a computer), but it is hard to imagine someone actually deeply holding the silly belief they possess. It's a question of whether this is a sincerely held belief, which is exactly the inquiry courts do now in many religious free exercise cases. It'd be nothing new.
2. Is it reasonable to allow the person to continue working there? If the court/jury finds a silly creed is actually deeply held, then they're still free to determine that the essential nature of the job requires X, which the individual can't do. Maybe we can expand the "essence of the job" test to a more refined "essence and natural function of the job" test. So the computer person wouldn't violate the prescription filling part of the test on it's own, but if working on a computer is naturally a function of filling prescriptions (such that the essence of the job naturally requires that function), then it makes sense to say that the individual can't really fulfill the essential duties of being a pharmacist.

Matthew B. Novak said...

Ben -

Sure, a lot of people change religion/denomination at some point in their lives. But how many change more than once? Very few, right? Which certainly indicates a very high level of stability.

What's even more important, when people change their religion/denomination, the most common reason (other than marriage) is because that religion/denomination better reflects their creed. That is, creed is an individual's approach. Churches are groups of people with similiar creeds. I don't agree with everything the Catholic church says - I have my own creed. Whether or not the Catholic church keeps the same position or changes their view to be more or less in line with what I think, my thoughts are independent. Creed is reflected in a person's religion, but not defined by.

And I think this actually serves to show even more how nearly-immutable creed is. It's so essential to a person that they'd even change religions to better suit their creed, instead of change their creed to fit their religion.

Matthew B. Novak said...

Jacob -

By arguing with them or taking their ideas seriously I show them the respect of being open to reasoning and reconsideration.

As you acknowledge, that's not quite what I'm saying. Because there's a difference between a nearly-immutable creed and the reasons behind that creed. It takes some really really good reasons to get someone to change their creed, and even when you succeed in that, it's usually better classified as a slight alteration than change. But you can also have really productive discussions with people where they don't change their creed but do develop additional or better reasoning behind their creed. Previous challenges by atheists, for example, have helped me flesh out more fully why I believe in God. They didn't change my creed, but they did change my reasons behind that creed.

So yeah... not quite what I'm saying. But I do see that there's something there that can be said about how creed isn't completely immutable.

We certainly could imagine courts distinguishing between businesses to which smoking is central and ones to which it is incidental, but I have never seen that happen.

My job has certainly made me more aware of the ability of courts/administrative hearings to properly assess facts and issue appropriate decisions. Maybe you've never seen it happen, but it's actually pretty routine. In fact, it's exactly the reason I like a case-by-case court inquiry here, rather than some clear cut-rule. Because each situation is different. Sometimes terminating someone because of their creed is going to make sense, and sometimes it isn't.

That being said, I understand your desire for clear rules people can plan around. And I think that the system I propose actually allows for a lot of that: people will be able to plan, for the most part, that they can't terminate an employee for their creed/sexual orientation/race/gender/family status, etc. But there will be exceptions to that rule, and people can kind of prepare for those. For example, they will also be able to plan to include mission statements if additional principles (like feminist principles in the pharmacy example) are important to them. You dismissed that idea as idealized, but it's actually a really great way for a business to plan for these situations. It's also pretty routine in my experience, at least at the non-profits where I've worked where additional principles are more frequently important. A great number of people do seriously operate that way, and those that don't probably should.

Ultimately though, you might be right that this just comes down to our faith in the political process. You're afraid of "people" (business owners) getting screwed (losing some money). I'm afraid of "people" (employees) getting screwed (losing their jobs and suffering discrimination). There's certainly a price to be paid on both sides. It's just clear to me that the price is steeper if we allow discrimination, and I think my proposal does a pretty fair job of reducing some of the price that would be paid by business owners, since they'd still be allowed to terminate in reasonable situations.