# Should smokers be discriminated against? **URL:** \ **Category:** Great Debates\ **Created:** [July 10, 2001, 1:16am UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895 "2001-07-10T01:16:52Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 16, 2001, 3:01am UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/61 "2001-07-16T03:01:44Z")
And, of course, what **jshore** said too. 😉 ---
**Author:** ![RoboDude](https://avatars.discourse-cdn.com/v4/letter/r/bbe5ce/32.png) [@RoboDude](https://boards.straightdope.com/u/RoboDude)\ **Post date:** [July 16, 2001, 4:33am UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/62 "2001-07-16T04:33:16Z")
> [@](#): > > Smoking and fat are the last bastions of free and unabridled discrimination in the USA. You don’t dare even ask someone about their personal sexual preferences, (which is as it should be) but you can immediately trash the resume of anyone who is fat or smokes and nobody, not even the US government, will even question you. Wrong is wrong. Actually, fat people (who aren’t too fat to do the job at hand) might be protected by the Americans with Disabilities Act. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 16, 2001, 6:14pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/63 "2001-07-16T18:14:38Z")
**RoboDude** replied to **Billy Rubin** : \*“You don’t dare even ask someone about their personal sexual preferences, (which is as it should be) but you can immediately trash the resume of anyone who is fat or smokes and nobody, not even the US government, will even question you. Wrong is wrong.” Actually, fat people (who aren’t too fat to do the job at hand) might be protected by the Americans with Disabilities Act.\* Probably not by the ADA (unless the obesity is related to a recognized disability of another kind), but there are some jurisdictions that restrict employment discrimination based on weight: according to [this article](http://www.wmich.edu/wmu/news/1999/9912/9900-133.html), only Michigan has a state law prohibiting such discrimination, but several municipalities nationwide do. And **Billy** ’s a bit off the mark in saying that you can’t discriminate on the grounds of sexual preference; discrimination on the basis of sexual orientation is indeed still legal in many places and very many employers openly practice it. The federal Employment Non-Discrimination Act (ENDA) would have prohibited this, but it was narrowly defeated in Congress in 1996. (It’s currently on the table again as Title V of the “Protecting Civil Rights for All Americans” Act, S.19, referred to committee this past January; you might want to drop a note to your Senator and indicate your support for it). This hodgepodge of anti-discrimination law is why the ACLU (rightly, to my way of thinking) advocates consistent legislation to prohibit [lifestyle discrimination](http://www.aclu.org/library/pbp12.html) in the workplace. I quote: > [@](#): > > One of the emerging issues in the American workplace is the attempt by employers to control certain private habits and proclivities of their employees that have no relationship to job performance. Fat people are victims of lifestyle discrimination, and a growing number of companies are refusing to hire smokers – even those who smoke only in their homes. A few employers exclude people with high cholesterol levels, or high blood pressure, and those who engage in such risky hobbies as scuba diving and hang gliding. Others impose lifestyle restrictions: One Oregon company bars workers who fail to participate in the company’s exercise program from attending company picnics; a Pennsylvania company prohibits its managers from riding motorcycles! > > The driving force behind this trend is economics: Employers concerned about the escalating costs of employee health insurance are attempting to cut costs by firing and/or refusing to hire people whose lifestyles appear to place them at risk of illness or injury. But if reducing health care costs is accepted as a legitimate reason for employers to regulate the off-the-job conduct of their employees, then virtually every aspect of our private lives could be subject to employer control. This would be Big Brotherism at its worst. […] > > The ACLU believes that, just as legislation has been needed to prevent other violations of civil liberties in the workplace, legislation is also necessary to prevent lifestyle discrimination. Just as federal, state and local laws exist to prohibit employment discrimination based on race, gender, ethnicity, religion and, in some places, sexual preference, new laws are needed to protect against discriminatory practices based on employees’ private lifestyle preferences and habits. > > Fourteen states have recently enacted laws that restrain employers from prohibiting legal activities as a condition of employment. For example, Colorado law makes it “a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours…” Other states are considering bills that prohibit employment discrimination based on off-duty smoking. The ACLU supports these efforts. Of course, another consistent approach would be the one that people like **David B.** and **The Ryan** seem to be advocating, namely, to place no restrictions at all on any kind of employment discrimination. I think this is vastly inferior on the grounds of general fairness, though. After all, employers already have a great deal of control over how employees must talk, dress, behave, etc., when they’re on the job, which is quite reasonable. It’s much less reasonable to give the boss control over what you do in your private life as well, or allow him/her to penalize you for things like race or disability which aren’t even a choice. As **jshore** pointed out, it ultimately comes down to a question of which preferences you’re going to privilege as “rights” and which you’re going to ignore. Giving bosses the right to discriminate at will for non-job-related reason is extremely intrusive on the right of individuals to have the personal lives (and the genetic characteristics) that they choose (or are stuck with). It’s far less intrusive for the government to restrict bosses’ right to discriminate for non-job-related reasons: the bosses still have full enjoyment of all their personal freedoms, as well as still retaining a great deal of power over employees’ on-the-job behavior. (And it’s not very realistic to respond that discriminated-against employees can simply find a more open-minded employer; employment discrimination is already a severe burden on many workers even with the regulation we do have, and it would be much worse with no regulation at all. As we noted in the case of consumer boycotts, there simply isn’t an infinite supply of producers, or employers, everywhere on the discrimination spectrum. Letting the market handle the issue of discrimination on its own means letting a lot of victims of discrimination suffer great hardship.) This “Sovereign Employer” proposal, on the other hand, maintains that the employer should have a paramount right to discriminate at will, and that the intrusiveness of that on employees’ personal freedoms is irrelevant. So the balance of power is further distorted in the employer’s favor, allowing him/her to dictate not only the employees’ work behavior but their private lives and personal characteristics as well. [digression] IMHO, like a lot of libertarian theory, this attitude displays a lot more solicitude for expanding the rights of those who are already propertied and powerful than for protecting the actual ability in practical terms of the less powerful to exercise their rights. In this view, only the government must respect rights unconditionally; individuals are free to do whatever they want to hinder one another from exercising the rights the government recognizes (short of actually interfering with one another’s property, that is). To my mind, that makes it a lot less meaningful to say that such a society is actually **supporting** those individual rights. And, of course, the propertied and powerful will in practice have far more rights than the rest. Certainly, in every type of society the powerful always have a disproportionate amount of freedom and choice, but the point of supporting individual rights, I thought, is to guarantee certain basic freedoms even for the most powerless. How truly meaningful is it to say that certain freedoms are “guaranteed” when your more powerful fellow citizens are perfectly free to ostracize, intimidate, impoverish, and/or starve you for exercising them? “Welcome to Libertaria: No Limits on Tyranny and Oppression up to Actual Force or Fraud.” No thanks. In any case, I don’t think this sort of view is at all reconcilable with the **proactive** support for the true exercise of liberty that is supposed to be the cornerstone of American democracy. [/digression] ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [July 17, 2001, 3:29pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/64 "2001-07-17T15:29:48Z")
Thanks, **Kimstu** , for that digression. You’ve expressed beautifully the central problem with libertarianism; the problem which would make any broad application of the philosophy far **less** effective as a means of securing individual _rights_ than other philosophies which advocate specific restrictions on individual _actions_. I don’t believe that it’s counterintuitive to say that maximizing individual freedoms of property usage tends to restrict the exercise of such freedoms to those with property. Yet, this simple truth is treated as if it were a mystifying obfuscation by libertarians. They see no reason why the people with property, power and influence should have restrictions placed on their interactions with those who possess little or nothing beyond their own flesh. After all, they say, both the tycoon and the pauper have the right to choose what to do with their own properties; if the pauper chooses to contract his labor in an unsafe workplace for subsistence wages, or if the tycoon wishes not to hire or sell to minorities, why they’re both just exercising their rights, aren’t they? The fact that the tycoon may discriminate within a large pool of potential employees and customers while the pauper’s choices are limited to the much smaller pool of employers who are willing to hire him and purveyors whose goods he can afford to purchase is not an equation that offers much hope for the pauper. Such inequalities will certainly NOT be ameliorated by market forces, but will in fact be heavily exacerbated by such forces unless they are mitigated by government authority based on egalitarian principles. This is why discriminatory hiring practices such as cited in the OP must be subject to judicial review of their compliance with civil rights legislation. If employment can be denied based on a _specific_ legal lifestyle choice that does not affect the ability of an applicant to perform the job for which she is applying, then _all_ lifestyle choices can be used in general to screen out applicants. Surely such a precedent must be considered carefully based on our preferences (as **Kimstu** noted) regarding individual rights to privacy, and on how we collectively wish to balance those individual rights against the rights of employers (as **jshore** suggested). ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 17, 2001, 4:28pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/65 "2001-07-17T16:28:09Z")
Thanks **xeno**! 🙂 Thinking over all this stuff, a kind of devil’s-advocate question occurred to me, and since this thread seems to have been more or less permanently “digressed” to the broader issue of employment discrimination in general, I guess I’ll go ahead and ask it. To wit: if we do extend civil-liberties protections broadly to the workplace via the kind of legal restrictions on “lifestyle discrimination” that I’m advocating, could they be invoked against an **employee** or potential employee who objected to some personal characteristic of his/her boss, or a coworker? If you turn down or quit a job because you find out that your employer or coworker belongs to a race or religion you don’t like or does something off-duty that you don’t approve of, are you guilty of employment discrimination? I recognize that in practical terms, this is much less likely to be a problem than the same kinds of discrimination practiced by employers; being denied a job has a much greater impact for most people than being denied a particular job applicant or employee. But I’m sure we could come up with some kind of hypothetical situation where it actually did make a difference. How do we fit that into our goal of defending the practical exercise of civil liberties? Does an employee have greater liberty to discriminate than an employer, and why, or what? Thinking this over some more, I think I see a parallel to the case of discrimination in customer service. As a merchant, you’re not allowed to discriminate against a customer on the basis of racesexreligionalltherest, but of course a customer can refuse to patronize a merchant for any reason he or she chooses. Okay, so we’re definitely saying something here about the primacy of the right of the individual dealing with the business to exercise personal choice, in comparison with the right of the business dealing with the individual to do so. But I haven’t figured out exactly what it is. Comments welcome! ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [July 17, 2001, 6:02pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/66 "2001-07-17T18:02:46Z")
Dear Devil’s Advocate 😉 : Your questions prompt a couple of other questions.[ul][li]What specific civil rights of my employer would I be violating were I to quit because of personal characteristics of my boss/coworkers?[\*]If none exist under current legislation, what employers’ rights do you think should be protected, and how do they “balance out” against the social preferences for freedom of mobility and job choice?[/ul][/li]IMHO, employees DO and SHOULD have greater liberty to discriminate in their employer preferences than employers have to discriminate in hiring, simply because the employer has the ultimate power of choice. While I may decide anytime I wish to terminate my employment within the terms of my contract, I may _not_ decide, on my own terms, to continue working; my employer may eliminate my position or fire me for cause. Similarly, I may decide which companies to whom I send my resume, and which offers of employment I refuse, but I may not force a company to hire me (even though I’m in a protected class). ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 17, 2001, 7:53pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/67 "2001-07-17T19:53:36Z")
**xeno** : Yeah. Hmmmm. Maybe what it all comes down to is simply this: _ **A business is not a sovereign individual.** _ Since commercial activity isn’t a protected activity within the private sphere like the exercise of speech or religion, commercial entities do not have sovereign individual rights (e.g., of free association) that allow them to discriminate at will, nor do human beings acting on behalf of and in the name of commercial entities. Since employees and customers **are** sovereign individuals, however, they retain their sovereign individual rights. That’s why employees and customers acting on their own behalf have the right to discriminate in ways not permitted to businesses or their representatives. So, for example, John Q. Racist is at liberty to refuse to work for a company with a black boss or to patronize Asian-owned restaurants. But in performing his job, he’s not allowed to refuse to deal with blacks or Asians, because he is acting in the capacity of representative for his business, which does not have a comparable right to discriminate. Man, if I’d thought about it that way in the first place, I could have saved myself considerable typing. 🙂 ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [July 17, 2001, 8:53pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/68 "2001-07-17T20:53:49Z")
> [@](#): > > _ **A business is not a sovereign individual.** _ Uh, yeah. That too. Heh, heh… :o ---
**Author:** ![pldennison](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@pldennison](https://boards.straightdope.com/u/pldennison)\ **Post date:** [July 17, 2001, 9:17pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/69 "2001-07-17T21:17:40Z")
> [@](#): > > \*Originally posted by Kimstu \* > \*\*Since commercial activity isn’t a protected activity within the private sphere like the exercise of speech or religion, commercial entities do not have sovereign individual rights (e.g., of free association) that allow them to discriminate at will, nor do human beings acting on behalf of and in the name of commercial entities. > \*\* I hate to split hairs here, since you and xeno have cozily come to terms with your wish to make people behave the way you want them to 😉 , but this is an interesting area. While “commercial entities” might not be sovereign individuals, the people who start them, operate them, and provide the capital to run them **are**. Furthermore, those “commercial entities” can’t exist independent of the people who own and operate them. 1. Let’s say I’m John Q. Racist, a white person. A neighborhood child, who happens to be black, comes by and offers to mow my lawn for $20. I, being racist, ain’t payin’ no money to no black kid, so I tell him to get lost. And I’m well within my rights to do so, right? 2. Reverse the situation–I’m now Johnny Racist, age 13. I’m going around the neighborhood offering to mow lawns. One family on the block happens to be black, and I don’t even offer them the opportunity to get their lawn mown because I don’t like black people. I’m still within my rights, correct? 3. Now let’s say I’m John Q. Racist again. I do landscaping for a living. I liked it so much at age 13 I decided it would be my vocation. I have no employees–I own all the equipment and do all the work. Am I still within my rights to not offer my services to blacks? Why or why not? If not, how does this differ significantly from situation 2? 4. I’ve decided I need some help with my landscaping, so I’m looking for another individual. I decide I only want to hire a white person. Am I still within my rights to do so? Why or why not? If I do hire another individual, of whatever ethnicity, do I still have the right to refuse my services to black? Why or why not? 5. Rather than hire a full-time employee, I offer my 14-year-old nephew a few bucks a day to help me. Can I still refuse to offer my services to blacks? Why or why not? 6. My landscaping business is successful, so I open up a second office with its own staff. Between my original business and this second office, I employ ten people. Do I have the right to limit my employment to whites? Why or why not? Do I have the right to refuse my services to whites? Why or why not? I guess what I’m asking is, at what point between situation 2 and situation 6 do I, in your opinions, give up my right to discriminate, and why? I am the same person in 6 as I am in 2, engaged in the same activity, with a difference in scale only. So why have my rights with respect to who I will hire and who I will service changed? ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 17, 2001, 9:46pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/70 "2001-07-17T21:46:46Z")
Interesting questions, **pld**. I found a nice [Handy Reference Guide](http://www.dol.gov/dol/esa/public/regs/compliance/whd/hrg.htm) to the Fair Labor Standards Act to help me with the answers, though it seems to be a little out of date. I’m not sure that the FLSA and the non-discrimination laws always apply in exactly the same way, but it seems okay as a first approximation, at least. \*1. Let’s say I’m John Q. Racist, a white person. A neighborhood child, who happens to be black, comes by and offers to mow my lawn for $20. I, being racist, ain’t payin’ no money to no black kid, so I tell him to get lost. And I’m well within my rights to do so, right? \* Sure, you’re a sovereign individual who may choose to engage or not to engage in voluntary commercial transactions for whatever reason you choose. _2. Reverse the situation–I’m now Johnny Racist, age 13. I’m going around the neighborhood offering to mow lawns. One family on the block happens to be black, and I don’t even offer them the opportunity to get their lawn mown because I don’t like black people. I’m still within my rights, correct?_ Hmmm, I’m sure you could get away with it, but the issue is clouded by the fact that you’re a minor engaged in casual day labor. I quote from my Handy Reference Guide: > [@](#): > > Domestic service workers such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters are covered if (1) their cash wages from one employer are at least $1,000 in a calendar year (or the amount designated pursuant to an adjustment provision in the Internal Revenue Code), or (2) they work a total of more than 8 hours a week for one or more employers. I think that as a minor doing unregulated, under-the-table part-time casual labor who probably ain’t pulling down no $1,000 a year from any one employer, the rules in question don’t apply to you. _3. Now let’s say I’m John Q. Racist again. I do landscaping for a living. I liked it so much at age 13 I decided it would be my vocation. I have no employees–I own all the equipment and do all the work. Am I still within my rights to not offer my services to blacks? Why or why not? If not, how does this differ significantly from situation 2?_ Forget it, John-boy—you’re not an underage casual laborer any more, you’re officially running a business. You might as well ask why you now have to report your income to the IRS and pay taxes on it, since you didn’t do that when you were 13. That’s not to say that you couldn’t still get away with discriminating in customer service, especially if you operate mostly by word-of-mouth advertising. And I seriously doubt that any black householder would bother to sue you for denial of service. But I think you’d still be technically violating anti-discrimination regulations. \*4. I’ve decided I need some help with my landscaping, so I’m looking for another individual. I decide I only want to hire a white person. Am I still within my rights to do so? Why or why not? If I do hire another individual, of whatever ethnicity, do I still have the right to refuse my services to black? Why or why not? \* This one seems fairly clear-cut; nope, you’re running a business, the business can’t discriminate in hiring. Again, it would probably be quite easy for you to get away with doing so, however. _5. Rather than hire a full-time employee, I offer my 14-year-old nephew a few bucks a day to help me. Can I still refuse to offer my services to blacks? Why or why not?_ See the answer to (4). The fact that you’re employing a minor family member as casual labor (and possibly paying him under the table?) may involve some labor-law hassles of its own, but I don’t think it would affect in any way the discrimination-in-service issue. \*6. My landscaping business is successful, so I open up a second office with its own staff. Between my original business and this second office, I employ ten people. Do I have the right to limit my employment to whites? Why or why not? Do I have the right to refuse my services to whites? Why or why not? \* Nope and nope; businesses are not allowed to discriminate on the basis of race in employment or in customer service. \*I am the same person in 6 as I am in 2, engaged in the same activity, with a difference in scale only. \* Nice try, but that “difference in scale only” (even between 2 and 3) comprises the difference between an underage casual part-time worker and an adult running a business. There’s quite a lot of room in that “difference in scale” to justify differences in regulatory restrictions. ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [July 17, 2001, 10:10pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/71 "2001-07-17T22:10:27Z")
I don’t know that you’re correct about # 3, **Kimstu** ; I suspect the answer depends on whether Johnny Racist advertises his services for a particular area or relies exclusively on door-to-door solicitation and word of mouth. Also, # 4 would depend on how J. Q. Racist solicited new employees. If he placed a help wanted ad, he’s on the hook not to discriminate on the basis of racegenderandalltherest, but if he makes individual offers, he can hire 200 white boys if he so wishes. The differences don’t really involve the _scale_ of the operation, just the manner in which service and employment are proferred. -Which may seem like an odd distinction, but it certainly allows small, family owned operations to reflect the sensibilities of those families, without permitting outfits large enough to advertise broadly (corporate entities) the same discriminatory leeway. BTW, **pld** , I’ve seen you advocate certain restrictions on group and individual behaviors yourself on some of these threads. Does that mean you join me and **Kimstu** in “wishing to make people behave the way we want them to”? 😃 ---
**Author:** ![pldennison](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@pldennison](https://boards.straightdope.com/u/pldennison)\ **Post date:** [July 17, 2001, 10:55pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/72 "2001-07-17T22:55:16Z")
**Kimstu** , I was hoping for your perspective from a moral/ethical standpoint, rather than a legal one. That is, I know how things are now–my question is, what is the difference between each of my 6 scenarios that makes the way things are the way they _should_ be, rather than some other way? Is this simply a case of the ends justifying the means, or is a greater ethical purpose being served by legislating that employers may not discriminate in that way? **xeno** –I am large; I contain multitudes. 😃 ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 18, 2001, 5:21pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/73 "2001-07-18T17:21:26Z")
**pld:** \*…my question is, what is the difference between each of my 6 scenarios that makes the way things are the way they should be, rather than some other way? Is this simply a case of the ends justifying the means, or is a greater ethical purpose being served by legislating that employers may not discriminate in that way? \* Taking the second question first: yes, the “greater ethical purpose” behind legal restrictions on employment discrimination, as I was talking about in some earlier posts, is the principle of supporting **actual** liberty and equality. In other words, if we as a society claim to value equal treatment of individuals irrespective of their race, religion, gender, private lives, etc., it’s hypocritical of us to refuse to interfere when individuals are being harshly subjected to unfair treatment. The difficulty, of course, is that there’s another ethical purpose also involved, the one dearest to the libertarian heart: namely, the principle of noninterference with individuals’ choices. In other words, we’ve got ourselves a classic conflict of opposing moral principles here: our common (or at least majority) aspirations toward egalitarianism and respect for diversity, versus our commitment to the sacredness of individual choice. The libertarians have an easy (not necessarily good, but at least easy) answer to this dilemma: to wit, the government has no business trying to legislate our common aspirations, but it should protect our right to individual choice in absolutely everything up to the limit of actual force or fraud. **xeno** and I (and several others) have explained at length why we don’t believe in this “easy answer”: mostly, because it would lead to a gross disparity between the _de jure_ and _de facto_ rights of those with less property and power. On paper, everybody would have the same set of very broad individual rights; in practice, most people would be oppressively restricted in their exercise of them. So how do we solve the dilemma, if we don’t buy the libertarian solution? Well, we make like good liberals and try to work out a compromise. 🙂 We identify certain areas where the principle of noninterference with individual choice should be paramount: free speech, religion, private association, etc. (though even in those, we have to allow some restrictions on particularly damaging individual choices, such as the classic S.“F”.I.A.C.T. ;)). Within these areas, we resign ourselves to accepting some inevitable negative consequences that damage our common aspirations, without trying to restrict them legally. It may be unfair and inegalitarian and un-American to despise people of a different race, for example, but that doesn’t authorize the gummint to come around and fine you for it. Individual liberties include the liberty to undermine our society’s egalitarian principles. However, in this version of democracy, individual liberties don’t apply to **every** type of individual act. Commercial activities are one of the areas where egalitarian principles (generally) trump the individual’s right to undermine them. Of course, as you point out, there are also sizable gray areas between the protected activities of a sovereign individual and the regulated activities of a business. Therefore, all such regulation is bound to come up against some equivocal situations in its quest to balance egalitarianism and noninterference, and some of its decisions are bound to be somewhat imperfect and arbitrary. (Which I think answers your first question: “the way things should be” is rather fuzzy in its details, and there are always going to be slightly different alternatives that would preserve the desired balance about as well.) Does that unavoidable imperfection and arbitrariness make this “liberal compromise” illegitimate? Nope. After all, there are gray areas and fuzzy distinctions in **all** regions of social and political theory (as anyone knows who has ever discussed with a libertarian exactly which specific actions should be classified as “force” or “fraud”). The basic principle “A business is not a sovereign individual and doesn’t have the same rights to discriminate as an individual” is still a valuable one, even if the way we implement it legally (like most other legal implementations) is in some places ambiguous and debatable. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [July 18, 2001, 8:15pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/74 "2001-07-18T20:15:18Z")
Jshore: > [@](#): > > One thing you talk about a lot is “personal liberties” and yet there is actually tradeoffs here. I.e., one person’s personal liberties to discriminate in employment violates another’s personal liberty to be able to provide a livelihood for themselves and their family, etc. What you are really saying is that you value one sort of personal liberty over another or one person’s personal liberties over another. You’re using the term “liberties” in a way that I find rather strange. It’s as if someone were to point out that when considering whether to outlaw murder, there is a tradeoff of liberties: on the one hand there is the liberty to live, but on the other hand there’s the liberty to kill with impunity. I suppose **technically** they are both liberties, but normally when one speaks of liberty, one is referring to the ability to make choices regarding one’s own life, not regarding another’s. If a person has the “liberty” to force another person to provide them and their family with a livelihood, that looks like a euphonism for theft to me. > [@](#): > > one has to decide where to put the balance between the individual rights and the sort of society we want to live in Now you’re going from liberties to rights, which are very different. > [@](#): > > have decided that there are in fact some limitations one must accept on free speech (such as yelling “fire” in a crowded theater) and on freedom from police surveillance (such as their right to obtain a search warrant and search your house if they have “probable cause” of criminal activity). There aren’t restrictions **on** the rights, there are restrictions **in** the rights. For instance, we don’t have the right to be free from searches; we have the right to be free from **unreasonable** searches. The “unreasonable” part is an inherent part of the right, and not a restriction put on the right. > [@](#): > > And, if you are not a market fundamentalist, can you remind me in what ways you believe that the market fails and should be regulated? Obviously I can’t name every single way in which the free market fails, but one way that it fails is in providing security, internal and external. We need an army and a police force, and I don’t see a viable source of these in the private sector. > [@](#): > > Or, to put it another way, how does not being a market fundamentalist jive with statements like, “But if all-white companies are doing better than interracial companies, doesn’t that suggest that discrimination is more efficient? And if all-white companies don’t do better than interracial companies, then market forces will work against them”? How does **being** a free-market fundamentalist jive with those statements? They are by no means absolute statements; I said “suggest” not “prove” and “work against” not “eliminate”. > [@](#): > > If you define the market solution as being de facto the efficient solution, then how is one ever to demonstrate a market inefficiency? When did I do so? Kimstu > [@](#): > > I thought my use of the phrase “how workable” would make it clear that “workability” is to be considered along a spectrum, not as any one absolute level of effectiveness. Throughout this thread you’ve been using it as a binary term. If you consider it a spectrum, then you shouldn’t say that free market solutions are unworkable; you should say that they are not very workable or are less workable. > [@](#): > > If you’re not willing to venture an estimate about how much they will help, and to back that up with convincing evidence, that’s not much of a claim. If it’s not much of a claim, then why did people jump on David B when he made it? It seems like for many liberals, the simple statement that market forces can be used to reduce discrimination is nearly on par with saying that we could eliminate global warming by building more air conditioners. > [@](#): > > Frankly, no. What exactly are you trying to say about your beliefs about the market’s efficiency? I was trying to point out the absurdity of using a single counter example to “disprove” a general statement. The market is generally the most efficient way in the sense that trees generally fall downhill and animals generally try to stay alive as long as possible. I cannot think of all the possible reasons why a tree might fall uphill or why an animal might allow itself to die earlier than it had to, nor can I think of all situations in which the market is inefficient. > [@](#): > > I still don’t see how any of this answers my question. I was trying to point out that your question assumes incorrect premises. > [@](#): > > However, I don’t think that issue can be completely separated from the question of its effects on society, because that involves its effects on other people’s rights, which are also important. But you said “society must accept some negative consequences as the cost of protecting the paramount rights of the individual”. Since you (apparently) agree that negative effects on society can’t even be considered unless it has already been determined that it is not a paramount right, it is illegitimate to use the negative effects on society in determining whether it is a paramount right. In other words: since you already agree that we must accept consequences for protecting rights, there must be something **other** than negative consequences for rejecting discrimination as a right. > [@](#): > > Hey, you’re the one who’s advocating a drastic change in the legitimacy of at-will employment discrimination, in defiance of the existing consensus of law and jurisprudence that it is not a protected individual right. Seems to me that you ought to be the one making a case for why you consider it legitimate to overturn that consensus. I don’t see how “that’s how it’s always been done” is much of a defense, nor do I see how lawyers are better qualified than I in making moral determinations. The fact is, you have made a statement contrary to common sense. All the precedents in the world don’t make it any more reasonable. > [@](#): > > In the sense that they’re not restricting themselves to the specific activities protected by the individual rights that are paramount in the private sphere. That’s circular. You say that they aren’t protected by individual rights because they’re in the public sphere, and when asked why they’re in the public sphere you say it’s because they’re engaged in activities not protected by individual rights. > [@](#): > > they’re involving the public, as employees and customers, in their attempts to make money through commerce. They’re not really involving the public; they’re involving **members** of the public, which is different. If it were the same, anything that I do with anyone else is “public”, since that other person is a member of the public. > [@](#): > > However, if you concede that commercial enterprise may be legitimately regulated by the government in some respects, you should explain why you think it’s logical to permit regulation in some areas but not in employment discrimination. That’s simple. No one’s rights are being violated by discrimination. But I’d like to know what **your** criterion is. Do you think the government has the right to regulate anything they want? Can they tell employers that they must wear a Mickey Mouse hat whenever talking to employees? (After all, it can be rather intimidating to talk with your boss. Perhaps making him look silly would make it easier). If not, what distinguishes legitimate legislation from illegitimate? > [@](#): > > Giving bosses the right to discriminate at will for non-job-related reason is extremely intrusive on the right of individuals to have the personal lives (and the genetic characteristics) that they choose (or are stuck with). No, it’s not. If a company refuses to hire smokers, no one is being forced to give up smoking > [@](#): > > It’s far less intrusive for the government to restrict bosses’ right to discriminate for non-job-related reasons: the bosses still have full enjoyment of all their personal freedoms, as well as still retaining a great deal of power over employees’ on-the-job behavior. Telling people they **have** to do something is less intrusive than telling people that something is merely a **condition** of employment? I don’t see how. And if you prohibit people from discriminating, you **are** restricting their personal freedoms: they now don’t have the freedom to discriminate. > [@](#): > > and that the intrusiveness of that on employees’ personal freedoms is irrelevant. No, not irrelevant. Nonexistent. It is not intrusive to make hiring decisions on whatever grounds one wishes. > [@](#): > > In this view, only the government must respect rights unconditionally; individuals are free to do whatever they want to hinder one another from exercising the rights the government recognizes (short of actually interfering with one another’s property, that is). That’s not it at all. Private individuals still have to respect people’s rights; you can’t go around breaking into other people’s houses and burning any books you don’t like. The ability to demand that someone hire you is not a “right”, so Libertarians aren’t advocating the restriction of a right; they’re advocating the restriction of a liberty. > [@](#): > > And, of course, the propertied and powerful will in practice have far more rights than the rest. You, like jshore, seem to be confusing liberties with rights. The rich have more liberties, but the same rights. > [@](#): > > How truly meaningful is it to say that certain freedoms are “guaranteed” when your more powerful fellow citizens are perfectly free to ostracize, intimidate, impoverish, and/or starve you for exercising them? I don’t see how ostracizing, intimidating, impoverishing, and starving people would fail to meet the “force or fraud” criterion. > [@](#): > > A business is not a sovereign individual. Yes, but it’s not the business whose rights are being interfered with; it the people that own them. A house is not a sovereign individual. Does that mean that something done in a house, or on behalf of a house (buying some grout, perhaps) can be regulated with impunity? Also, going back to businesses: can the government restrict **other** rights of a business? For instance, if a newspaper is run as a business (as most are), can the government tell it not to print certain articles? If not, what’s the difference between this and discrimination? ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [July 19, 2001, 1:10pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/75 "2001-07-19T13:10:42Z")
**The Ryan** posted: > [@](#): > > You [Kimstu], like jshore, seem to be confusing liberties with rights. The rich have more liberties, but the same rights. Yes, you’re quite right, **The Ryan**. And that’s actually the distinction we’ve been trying to make; you’ve reduced it down to its basic level. And thanks for doing that, because it really clarifies a major bone of contention in this thread. Specifically, one group of posters asserts that government has no business denying rights to corporations that are not denied to individuals. -This group would include _you_, **DavidB** , **sdimbert** , **Beelzebubba** and (presumably) **tracer** and **pldennison**.- They believe that, if society wants to discourage discrimination by businesses, then private actions (boycotts, etc.) are called for to exert such pressures, but government interference is neither fair nor justified. Another group of posters (_me_, **jshore** , **Kimstu** , **kabbes** and -presumably- **RoboDude** ) desires that governments go beyond guardianship of equal rights and attempt to provide and protect the minimum basic liberties required to exercise those rights. We believe that such protection requires, among other things, anti-discrimination laws that prohibit businesses from restricting opportunities based on non-business criteria. > [@](#): > > I don’t see how ostracizing, intimidating, impoverishing, and starving people would fail to meet the “force or fraud” criterion. Assuming no antidiscrimination laws were in effect, would it be “force or fraud” for a majority group to ignore and disinvolve minority groups from community activities? To post signs and distribute literature degrading minority groups and warning them away from communities and businesses run by members of the majority group? To refuse to hire or do business with members of minority groups? To deny economic opportunities to members of minority groups? > [@](#): > > …For instance, if a newspaper is run as a business (as most are), can the government tell it not to print certain articles? If not, what’s the difference between this and discrimination? Prohibition of subject matter would violate freedom of the press, a constitutionally guaranteed right. Prohibition of discrimination in hiring and promotion does not restrict a newspaper’s ability to report or comment on current events, and thus does not violate freedom of the press. It does, however, restrict the ability of the newspaper to exert anti-egalitarian pressures on the community. It protects the _liberties_ of the employees of that newspaper. I can see why this would bother those who want government to be _fair in its actions_, but it certainly pleases those of us who prefer government to be _active in promoting fairness_. ---
**Author:** ![pldennison](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@pldennison](https://boards.straightdope.com/u/pldennison)\ **Post date:** [July 19, 2001, 1:20pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/76 "2001-07-19T13:20:27Z")
> [@](#): > > \*Originally posted by xenophon41 \* > **Specifically, one group of posters asserts that government has no business denying rights to corporations that are not denied to individuals. -This group would include _you_, DavidB, sdimbert, Beelzebubba and (presumably) tracer and pldennison.** Woah, woah, woah! I didn’t say that! That’s why I presented all the scenarios in which I am just a person mowing lawns, the sole proprietor and employee of a business, a small employeer, and a franchisee. I was curious as to your opinion at what point the ethical difference kicks in which means I can no longer exercise certain rights of association. Apparently, it kicks in as soon as I begin offering my services in exchange for money. I don’t, of course, agree with your conclusion. We are all, to some extent or another, “commercial entities.” At the minimum, we are all selling our labor or our capital in the marketplace. As such, I believe our rights should be the same regardless of the scale at which we engage in that activity. I do believe in the converse of your statement, though, which is that corporations should not be entitled to rights that individuals do not have. ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [July 19, 2001, 1:49pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/77 "2001-07-19T13:49:08Z")
**pldennison** Sorry about misrepresenting your position; I’ll amend my comments to include you into a third group who would allow specific adjustments of rights of association but expect that they be applied consistently in accordance with the _type_ of activity rather than the _scale_ of that activity. Would that be correct? > [@](#): > > I don’t, of course, agree with your conclusion. We are all, to some extent or another, “commercial entities.” At the minimum, we are all selling our labor or our capital in the marketplace. The difference is one of _effect_, which is why scale IS important. My individual sales of labor and capital cause a few ripples on the surface of the market; GE can create huge tidal currents (…please excuse my “big pond” imagery). It aint _fair_ of the government to apply different standards to John Q. Racist than they apply to Bigotry Inc., but the focus must be on the fairness to the community, not to the major actors in the marketplace. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 19, 2001, 4:20pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/78 "2001-07-19T16:20:31Z")
**The Ryan** replied to me: \*“In this [libertarian maximization-of-property-rights] view, only the government must respect rights unconditionally; individuals are free to do whatever they want to hinder one another from exercising the rights the government recognizes (short of actually interfering with one another’s property, that is).” That’s not it at all. Private individuals still have to respect people’s rights; you can’t go around breaking into other people’s houses and burning any books you don’t like.\* I think you missed my parenthesis acknowledging that libertarians do restrain individuals from hindering one another’s exercise of rights by **“actually interfering with one another’s property”**. Breaking into houses and burning books, of course, counts as interfering with property. So you’ve kind of missed the chief point that I was trying to make, which is that in the absence of laws restricting certain kinds of discrimination, there are indeed ways of “hindering others from exercising their recognized rights” that don’t actually fall into the force-or-fraud category of interference with property. **xeno** listed quite a few counterexamples to your claim that “ostracism, intimidation, impoverishment, or starvation” would necessarily take the form of actionable force or fraud, and we could all think of innumerable others. In short, it is simply not realistic to try to duck the issue of discrimination as a practical **hindrance** to the exercise of others’ rights by clinging to the assertion that it doesn’t actually constitute a technical **infringement** of others’ rights. (As you would like to define “rights”, that is; as they are currently defined, of course, employment discrimination on certain grounds **is** officially a rights infringement as well as a practical obstacle to the exercise of rights.) Like it or not, when employers turn down or fire an employee simply for being an off-duty smoker, or for liking to rock climb, or for being black, etc., they are imposing a huge practical burden on the employee just for having a characteristic that he/she has an undisputed right to have (and that doesn’t affect his/her job qualifications). They are also violating the principles of fairness and egalitarianism that are an important part of our society. Refusing to deal with these issues except by reiterating “well, but they’re not actually **forcing** anybody to change” just keeps nullifying attempts at serious debate. So does resorting to a silly and extreme “slippery slope” argument that if the government can forbid certain kinds of employment discrimination, it can also require bosses, say, to wear funny hats. You’ll notice that while we do in fact have a large and (fortunately) growing body of anti-discrimination law in this country, the nation is nonetheless not reeling under the burden of excessive legislation on the subject of funny hats. As I acknowledged to **pldennison** , when we try to use legislation to support two different, and sometimes opposed, ethical principles (egalitarianism and non-interference), we do wind up with gray areas and we do sometimes go too far in one direction or the other. But it doesn’t mean that we will inevitably end up at one of the extremes: we can, and to a large extent currently do, strike a reasonable balance that is neither too laissez-faire nor too intrusive. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [July 19, 2001, 8:34pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/79 "2001-07-19T20:34:00Z")
xeno > [@](#): > > Assuming no antidiscrimination laws were in effect, would it be “force or fraud” for a majority group to ignore and disinvolve minority groups from community activities? To post signs and distribute literature degrading minority groups and warning them away from communities and businesses run by members of the majority group? To refuse to hire or do business with members of minority groups? To deny economic opportunities to members of minority groups? That’s such a general question that I can’t give a simple answer. Are the signs on public property? Are the signs and literature simply stating opinions, or are they propogating false statements? When you say “warn” do you mean “threaten”? When you say “deny economic opportunities” do you mean deny some, or deny all? > [@](#): > > Prohibition of subject matter would violate freedom of the press, a constitutionally guaranteed right. Prohibition of discrimination in hiring and promotion does not restrict a newspaper’s ability to report or comment on current events, and thus does not violate freedom of the press. Well, yes it doesn’t violate freedom of speech. Neither does confiscating all guns. I didn’t realize the First Amendment is the sum total of our rights. What I meant by “what’s the difference?” is “why is one a violation of rights, and the other not?” Saying that the difference between censorship and anti-discrimination laws is that censorship violates a right and anti-discrimination laws don’t is simply begging the question. > [@](#): > > I can see why this would bother those who want government to be fair in its actions, but it certainly pleases those of us who prefer government to be active in promoting fairness. If you prefer promotion of fairness to fair actions, shouldn’t you support censorship? Kimstu > [@](#): > > I think you missed my parenthesis acknowledging that libertarians do restrain individuals from hindering one another’s exercise of rights by “actually interfering with one another’s property”. Breaking into houses and burning books, of course, counts as interfering with property. Well, I was thinking of it as a violation of free speech, and the involvement of property was only incidental to the violation of free speech. If you exclude everything that involves property in any way, then I don’t see how anyone could violate anyone else’s rights. And “hindrance” is not the same a “violation”. > [@](#): > > xeno listed quite a few counterexamples to your claim that “ostracism, intimidation, impoverishment, or starvation” would necessarily take the form of actionable force or fraud, and we could all think of innumerable others. I don’t see how any of these examples could lead to starvation without force being involved. > [@](#): > > In short, it is simply not realistic to try to duck the issue of discrimination as a practical hindrance to the exercise of others’ rights by clinging to the assertion that it doesn’t actually constitute a technical infringement of others’ rights. Why not? Is there something inherently wrong with hindering other people’s rights? > [@](#): > > So does resorting to a silly and extreme “slippery slope” argument that if the government can forbid certain kinds of employment discrimination, it can also require bosses, say, to wear funny hats. I really don’t appreciate your distortion of an honest question. I would like to know what, if anything, is the principle that distinguishes silly hat legislation from anti-discrimination legislation. If you are unable to come up with such a principle, I certainly will not try to claim that we are in immediate danger of being overrun by silly hats, but I will consider every argument you make in favor of anti-discrimination legislation to also apply to silly hat legislation. ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [July 19, 2001, 9:30pm UTC](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895/80 "2001-07-19T21:30:17Z")
**The Ryan** : > [@](#): > > That’s such a general question that I can’t give a simple answer. Are the signs on public property? Are the signs and literature simply stating opinions, or are they propogating false statements? When you say “warn” do you mean “threaten”? When you say “deny economic opportunities” do you mean deny some, or deny all? The point is that all of these things are possible without violating the “force or fraud” criterion. > [@](#): > > What I meant by “what’s the difference?” is “why is one a violation of rights, and the other not?” Your specific newspaper question was: “…what’s the difference between [a newspaper printing articles the government doesn’t approve of] and [a newspaper practicing] discrimination?” My answer was that the former (freedom of the press) is a protected constititutional right but the latter (discriminatory practices) is not. If you now wish to ask what is _the justification_ for denying commercial enterprises the right to discriminate on the basis of racegenderetcetera, then please see the answers I and **Kimstu** gave to **pldennison**. > [@](#): > > If you prefer promotion of fairness to fair actions, shouldn’t you support censorship? I remember now why I have such a hard time discussing things with you. Let me try and be excruciatingly specific: I prefer that my government, rather than concentrating exclusively on the fairness of its own actions, attempt _ **as well** _ to promote fairness in business opportunities by balancing the operational freedoms of businesses against the liberties of its citizens. I fail to see what it is about censorship that you think would promote such fairness. [Previous page](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895.md?page=3) [Next page](https://boards.straightdope.com/t/should-smokers-be-discriminated-against/71895.md?page=5)