Feds Sue A & F --corporate "self-definition" and employee self-expression

Humbach, Prof. John A. jhumbach at law.pace.edu
Fri Sep 3 10:40:14 PDT 2010

On corporations' "self-definition"...

It is surely true that corporate liberty has an ambivalent relationship to individual liberty. After all, corporations are run as autocracies. On the other hand, everyone is normally free, in theory at least, to choose whether to have dealings with a particular corporation or not.

However, although all are entitled to express themselves as they please (including in style of dress and appearance), none of us is legally entitled to have others accept or like what we express. It is the liberty of others to reject or even be repelled by expression that they find distasteful or disagreeable.

While corporate liberty is not on a moral par with individual liberty, a corporation's choices should generally be permitted, for pragmatic reasons, to take into account the liberty and personal feelings of their customers and others whose business they are trying to attract--except only that they may not impinge on interests that are protected under the Constitution. That seems, at any rate, to be a fundamental premise of a free market economy.

Whether there should be a further legal exception to protect overtly "religious" expression, as Professor Laycock suggests, is probably still an open question, though I think Professor Hamilton rightly wonders why secular laws should give this special legal preference and shelter to religious as opposed to non-religious expression.

John A. Humbach

From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Malla Pollack [mallapollack3 at gmail.com]
Sent: Friday, September 03, 2010 12:00 PM
To: hamilton02 at aol.com
Cc: conlawprof at lists.ucla.edu
Subject: Re: Feds Sue A & F over refusal to allow Muslim headscarves in theworkplace

Why is it so "obvious" to so many on this list that a corporation's self-definition is more important than the autonomy rights of actual humans?
I would suggest more limits on the power of merely juridical persons (aka money-making machines, think of them as the institutionalization of  sharks; sharks eat and have baby sharks while big businesses make money and eat people, the environment, etc). One quite practical reason for supporting laws and government power to make "private employers" allow some "deviant" behavior is that this levels the playing field.  Otherwise better intentioned employers are afraid to allow any "deviance."
Malla Pollack

On Fri, Sep 3, 2010 at 10:46 AM, <hamilton02 at aol.com<mailto:hamilton02 at aol.com>> wrote:
In my view, the us of the loaded term workplace "segregation" is misleading at best.  If the employer is making business decisions and not religiously motivated decisions, the "segregation" in Disney or A & F would amount to all those employees who have full-face tattoos, spiked pink-tipped hair, dress in a different Halloween costume each day, and/or who wear religious or nonreligious garb inconsistent with the corporate image.  The religious individual is not being "segregated" at all, but rather being placed in the position consistent with the company's business ends.  Do you have a problem with that?  It would seem that you are arguing that there is a problem, because the corporate image might rest on cultural stereotypes that preclude certain images.  But the only "images" being precluded are articles of clothing, not faces or races.   Or am I missing something?

As Marc pointed out, if there is a pretext, that is a different, fact-based issue.

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
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