Re: Civil liberties of employees (Re: FYB_oss)

[tcmay@got.net (Timothy C. May)]

Professor Froomkin and I have many disagreements about the nature and
direction of laws in the U.S. I think I was careful to couch my points in
terms of what the law should be, not what it currently is.

For example, I think it fully Constitutional to choose not to serve blacks
in one's home, business, church, or whatever. Until fairly recently, the
courts saw it this way as well. (I'm not referring to state-sponsored
discrimination, such as keeping blacks and women from voting, or visiting
government-paid-for facilities, etc)

[This is a provocative statement to many. I can elaborate if there is real
interest. Suffice it to say that if I operated a bookstore, or gym, or
restaurant, or whatever, I would not personally choose to discriminate
thusly. Though I might with regard to other (unspecified here) so-called
minority groups. And it would be my free right to choose whom to hire, whom
to do business with, whom to serve, and so on. It's pretty clear in the
Constitution, as I see it, that the government is not empowered to tell
people whom they may associate with and whom they _must_ associate with.
Again, the so-called Civil Rights Movement, which had good origins in
overturning clearly unconstitutional laws about voting (Jim Crow laws),
state-enforced segregation, etc., has been carried to the point of
interfering with the right of free association.]

The current interpretation of the law makes it a crime for a restaurant to
allow smoking (at least in many--and increasing--locales). The current
interpretation (henceforth shortened to "CI" for brevity) says that a
church may not discriminate on the basis of religious affiliation, and
hence must not discriminate against Satanists. The CI says that a health
club may not discriminate against women (but, interestingly, many health
clubs here in my state of California are "women-only"). The CI says that if
a white person uses the term "nigger" he may be convicted, in some
jurisdictions, of a "hate crime," but if the coloreds use the term, it's
OK.

[Here in Santa Cruz, the term "black" has fallen into disfavor, and is
dubbed a label of the whitemale patriarchy. Thus, we have "lesbians of
color," "students of color," "queers of color," etc. As one leading thinker
puts it, "all wymyn are people of color." Therefore, colored people, or
coloreds, for short. We have come full circle.]

>The issue here isn't a constitutional issue.  It's a *statutory* right.
>And a real one.  Sex discrimination in employment is prohibited by law.
>We can call this a "civil right" or something else, but the if the facts
>alleged in the case to which TCM refers are as claimed, they seem to have
>a fairly good case under the law as it stands.  And there's a lot more
>than skimpy outfits at issue, including a refusal to hire men for what are
>allegedly food service jobs (gender may only be a determination of
>employment if it is a bona fide occupational qualfiication, e.g.  policing
>the showers in the gym; gender is not a BFOQ for food service jobs.)

It is not the business of any regulatory agency to _second-guess_ why I
want my girls at my Hooters to wear skimpy outfits. In fact, there is no
real doubt why the girls are dressed as they are. (Hint: the name.) The
girls can choose to work for me, or not. No slavery is involved.

(Of course, I also favor legalization of indentured servitude. The military
is allowed to buy X years of labor by paying for a student's education, so
why not IBM? It might actually help the unemployment crisis we are now in.)

In any case, I choose to focus on politico-jurisprudential issues, of what
the law _should_ be, not what the current mess says is the law.

As Roseanne Barr--not one of my favorites--recently so cogently observed:
"Heidi Fleiss is going to prison, OJ Simpson is playing golf in
Brentwood...we're living in Dante's Inferno."

--Tim May

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