Feds Sue A & F --corporate "self-definition" and employee self-expression
mallapollack3 at gmail.com
Fri Sep 3 10:52:46 PDT 2010
No. The entire point of a liberal (in the John Stuart Mill sense) government
is that some choices made by *natural persons *should not be constrained.
The government needs to make illiberal "customer" preferences illegal in
order to free businesses from the influence of the non-liberal among us.
The history of the USA shows the persistent strength of a strong minority
(at least) who see the choices of "outsiders" as dangerous without real
cause. That is why anti-discrimination laws were needed to achieve racial
integration. If the government takes this step, monetary competition can
remain capitalistic without subjugating the "different" among us. If
government does not, businesses which do discriminate (and thus more deeply
subjugate humans) tend to have a competitive edge.
As an empirical matter, I strongly doubt that most of us are "free" to live
without "choosing" to interact (in a somewhat subservient way) with
corporations. Since corporations are not people, they do not IMHO have any
rights any of us natural persons are morally bound to respect. I personally
am all for subjugating corporations. -- of course international
corporations are relatively hard for territorially limited governments to
control, but they could gang up on the bullies.
On Fri, Sep 3, 2010 at 12:40 PM, Humbach, Prof. John A. <
jhumbach at law.pace.edu> wrote:
> 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
> 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
> 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
> 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> 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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