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SHOULD ANTIDISCRIMINATION LAWS LIMIT FREEDOM OF ASSOCIATION? THE DANGEROUS ALLURE OF HUMAN RIGHTS LEGISLATION

Published online by Cambridge University Press:  02 June 2008

Richard A. Epstein
Richard A. Epstein
Affiliation:
Law, The University of Chicago
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Abstract

This article defends the classical liberal view of human interactions that gives strong protection to associational freedom except in cases that involve the use of force or fraud or the exercise of monopoly power. That conception is at war with the modern antidiscrimination or human rights laws that operate in competitive markets in such vital areas as employment and housing, with respect to matters of race, sex, age, and increasingly, disability. The article further argues that using the “human rights” label to boost the moral case for antidiscrimination laws gets matters exactly backwards, given that any program of forced association on one side of a status relationship (employer, not employee; landlord, not tenant) is inconsistent with any universal norm governing all individuals regardless of role in all associative arrangements. The articled also discusses the tensions that arise under current Supreme Court law, which protects associational freedom arising out of expressive activities (as in cases involving the NAACP or the Boy Scouts), but refuses to extend that protection to other forms of association, such as those involving persons with disabilities. The great vice of all these arrangements is that they cannot guarantee the stability of mandated win/lose relationships. The article further argues that a strong social consensus against discrimination is insufficient reason to coerce dissenters, given that holders of the dominant position can run their operations as they see fit even if others do otherwise. It closes with a short model human rights statute drafted in the classical liberal tradition that avoids the awkward line drawing and balancing that give rise to modern bureaucracies to enforce modern antidiscrimination laws.

Type
Research Article
Information
Social Philosophy and Policy , Volume 25 , Issue 2 , July 2008 , pp. 123 - 156
Copyright
Copyright © Social Philosophy and Policy Foundation 2008

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References

1 See generally Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 151Google Scholar. Nozick makes the point explicitly when he notes that his entitlement theory allows for claims to arise in accordance with (1) the principle of justice in acquisition and (2) the principle of justice in transfer, and “by (repeated) applications of 1 and 2.” Nozick is wrong to conclude that these principles represent the only legitimate way to acquire entitlements, such that acquisition through forced exchanges is precluded. See Epstein, Richard A., “One Step Beyond Nozick's Minimal State: The Role of Forced Exchanges in Political Theory,” Social Philosophy and Policy 22, no. 1 (2005): 286–313CrossRefGoogle Scholar.

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15 NAACP, 357 U.S. at 460–61.

16 See Gitlow v. New York, 268 U.S. 652, 666 (1925)Google Scholar. The Gitlow case announced a profound shift in constitutional jurisprudence in a most off-handed way: “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” The case then rejected the First Amendment defense against a criminal prosecution for publishing “The Left Wing Manifesto,” a socialist tract, which issued a call to action that was widely ignored. Gitlow is not good law on this point today.

17 NAACP, 357 U.S. at 459.

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26 Dale, 530 U.S. at 670 (Stevens, J., dissenting).

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29 Aristotle's famous account of moderation (sometimes translated as “temperance”) is in Book II of the Nicomachean Ethics, in The Basic Works of Aristotle, ed. McKeon, Richard (New York: Random House, 1941)Google Scholar.

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34 Americans with Disabilities Act, 42 U.S.C. 12112 (a): “General rule: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

35 42 U.S.C. 12111 (9): “Reasonable accommodation. The term ‘reasonable accommodation’ may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

36 42 U.S.C. 12111 (10): “Undue hardship. (A) In general: The term ‘undue hardship’ means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

“(B) Factors to be considered: In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include (i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.”

37 For a general list of disability rights activists, see “List of Disability Rights Activists,” Wikipedia, http://en.wikipedia.org/wiki/List_of_disability_rights_activists (accessed August 6, 2007)Google Scholar.

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39 “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. sec. 12182(a).

Unlawful discrimination includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. sec. 12182(b)(2)(A)(iii).

40 For examples of the high costs of making buildings accessible, see the Florida Building Commission Accessibility Advisory Council, Minutes, August 25, 2003, http://www.dca.state.fl.us/fbc/committees/accessibility/aac/aacmin0803.pdf (accessed August 6, 2007)Google Scholar (granting waivers to several builders when more than 20 percent of the project costs would be spent on accessibility).

41 N.Y. Exec. sec. 296 (2005)Google Scholar. Recent proposed amendments to the New York Human Rights Act seek to ensure that firms will not be required to provide accessibility that is not “readily achievable” in financial terms, subject to the usual multifactor determinations on costs, benefits, overall resources, type of operations, and the like. See, e.g., 2007 N.Y.A.B. 4932 (2007)Google Scholar.

42 Public choice theory analyzes the behavior of individuals in various political settings, as self-interested actors who respond to the incentives created by the political system. For an introduction to the theory, see Buchanan, James M. and Tullock, Gordon, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Indianapolis, IN: Liberty Fund, 1999)Google Scholar.

43 Civil Rights Act of 1866, 14 Stat. 27Google Scholar.

44 Civil Rights Act of 1866, chap. 31, 14 Stat. 27Google Scholar. Section 1 states that “all persons born in the United States … shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

45 Civil Rights Act of 1866, chap. 31, 14 Stat. 27, 27–30Google Scholar (codified as amendments at 42 U.S.C. secs. 1981, 1982 [2005]).

46 U.S. Constitution, Fourteenth Amendment, Section 1. For an analysis of the relationship between the citizens protected under the privileges or immunities clause of the Fourteenth Amendment and the persons protected under the due process and equal protection clauses, see Epstein, Richard A., “Of Citizens and Persons: Reconstructing the Privileges or Immunities Clause of the Fourteenth Amendment,” New York University Journal of Law and Liberty 1 (2005): 334–54Google Scholar; Epstein, Richard A., “Further Thoughts on the Privileges or Immunities Clause of the Fourteenth Amendment,” New York University Journal of Law and Liberty 1 (2005): 1095Google Scholar.

47 42 U.S.C. section 1982: “Property rights of citizens: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

48 Jones v. Alfred H. Mayer Co., 390 U.S. 409 (1968)Google Scholar.

49 For my further defense of this position, see Epstein, “Two Conceptions of Civil Rights.”

50 Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays (New Haven, CT: Yale University Press, 1919)Google Scholar.

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52 Griggs v. Duke Power Co., 401 U.S. 424 (1971)Google Scholar.

53 For my views, see Epstein, Forbidden Grounds, 159–266. For earlier work in this vein, see Demsetz, Harold, “Minorities in the Market Place,” North Carolina Law Review 43 (1965): 271–97Google Scholar; Avins, Alfred, “Anti-Discrimination Legislation as an Infringement on Freedom of Choice,” New York Law Forum 6 (1960): 13–37Google Scholar; Friedman, Milton, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), 108–18Google Scholar (noting the relationship between economic freedom and the absence of discrimination, and criticizing antidiscrimination laws as ineffective and costly); and Posner, Richard, “The Efficiency and the Efficacy of Title VII,” University of Pennsylvania Law Review 136 (1987): 513–21CrossRefGoogle Scholar (assessing the costs that are either ignored or imposed by Title VII).

For defenses of the modern view, see Willborn, Steven L., “The Disparate Impact of Discrimination: Theory and Limits,” American University Law Review 34 (1985): 799–837Google Scholar (defending the disparate-impact test, using economic analysis); and Rutherglen, George, “Disparate Impact Under Title VII: An Objective Theory of Discrimination,” Virginia Law Review 73 (1987): 1297–1345CrossRefGoogle Scholar (defending the Griggs disparate-impact test as a logical judicial application of the 1964 Civil Rights Act).

54 For details on the Wonderlic test, which is a twelve-minute, fifty-question exam meant to test employees' acuity, see “Wonderlic Test,” Wikipedia, http://en.wikipedia.org/wiki/Wonderlic_Test (accessed August 8, 2007)Google Scholar.

55 A plaintiff may demonstrate that use of a test is an unlawful business practice if he demonstrates that the testing “causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. sec. 2000e-2(k)(1)(A)(i). Even if the plaintiff cannot meet this burden, “the plaintiff can still prevail if he can show that there is an alternative selection method that has substantial validity and a less disparate impact.” Firefighter's Institute for Racial Equality v. City of St. Louis, 220 F.3d 898 (8th Cir. 2000), citing 42 U.S.C. sec. 2000e-2(k)(1)(A)(ii)Google Scholar.

56 42 U.S.C. sec. 12112(a).

57 42 U.S.C. sec. 12112(d)(3).

58 For an example of the high level of disclosures required in the securities context to avoid liability for tortious misrepresentation, see TSC Industries Inc. v. Northway Inc., 426 U.S. 438, 449 (1976)Google Scholar: “An omitted fact is material [and therefore requires disclosure] if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.”

59 See Sunstein, Cass, “Willingness to Pay vs. Welfare,” Harvard Law and Policy Review 1 (2007): 303Google Scholar. The use of contingent valuation in environmental contexts on issues relating to pollution is always more defensible, because some collective judgment is necessarily required, and there is no disruption of voluntary transactions.

60 DeLeire, Thomas, “The Wage and Employment Effects of the Americans with Disabilities Act,” Journal of Human Resources 35 (2000): 693–715CrossRefGoogle Scholar.

61 Connecticut v. Teal, 457 U.S. 440 (1982)Google Scholar.

62 At the very beginning of the text of the Americans with Disabilities Act, Congress loudly proclaims the benefits created by the statute: “(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” Pub. L. No. 101-336, sec. 2, 104 Stat. 327 (1990). It is not until much later, hidden in the “definitions” section, that Congress hints that there might be costs associated with the creation of these benefits. See sec. 101(10) (defining undue hardship).

63 Civil Rights Act of 1964, 42 U.S.C. sec. 2000e-2(e)Google Scholar.