Daniel J.H. Greenwood

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BFOQs

Daniel Greenwood greenwoodd at LAW.UTAH.EDU
Wed Dec 20 12:36:59 PST 2000


Several posts yesterday starkly foregrounded one of the key disputes
here:  what the background rule is in hiring.

Some appear to view the background rule as the "living room rule":
unlimited discretion.   I invite into my house whomever I want for
whatever reason I want and there is nothing wrong with that.  No one has
a claim to an invitation to my house (or, indeed, anyone's house).
Against this background, they see a limited and somewhat anomalous
intervention by the civil rights laws, limiting discrimination along
religious lines, but not, for example along feminist lines.

Others, however, assume the "market rule":  my dollars are as good as
yours.  In an anonymous market the identity of the buyer is completely
irrelevant, even (as in the stock market) unknown.  Whoever makes the
highest bid, wins:  Christian money, pagan money, stolen money, earned
money, all are the same.

The anti-discrimination laws are generally understood by the courts as
reflecting a "market rule" in the hiring market:  careers open to
talent, whoever makes the highest qualifications/lowest pay bid for the
job, should win.  As in an anonymous market, personality is irrelevant.

Generally, the market enforces anti-discrimination principles on its
own.  One reason why Eugene's kosher wine problem was not a good example
is that it rarely exists:  any winery that discriminated as he suggested
would pay higher wages, have a higher priced product and likely fail to
compete with non-discriminatory wineries.

On this view, the anti-discrimination laws are not an anomalous
intervention into this system, changing the base rules, but rather an
attempt to enforce the background assumptions in a context where social
norms and the market might fail to do so.

There are two key such situations:  one, when an organized body of
consumers, with some help from Jim Crow laws and the KKK, is able to
enforce a boycott of non-discriminatory, lower cost, providers; and two,
when producers -- based either on prejudice or reality -- view
discrimination as a low cost route.  (Rather than expensively
determining if a potential salesclerk is reliable or knowledgeable, just
cheaply hire people who go to your church or look like you.  Or, even
more commonly, rather than expensively learn how to attract and manage a
diverse labor force, cheaply hire relatives of your existing laborers).

In the latter case, anti-discrimination law may be reflecting a judgment
that the cost of efficiency is too high, or, more often, that market
failures (a diverse work force is a public good, the costs of which may
be borne by pioneers while the benefits go to society as a whole)
preclude individual actors from reaching a more efficient result.

***
On the living room view, the anti-discrimination laws are in effect
unequal treatment of people who'd like to discriminate based on race,
religion or gender, instead of, for example, political beliefs,
attractiveness or height.  So they are always suspect, and in first
amendment contexts always invite the complaint that they violate speech
neutrality principles (secular ideologies are preferred to religious
ones) or religious free exercise principles (secularists can
discriminate, why can't the religious?)

On the market view, it is discrimination that must always defend
itself:  why is a shop keeper ever allowed to choose one salesman over
another? -- only because it is too difficult for the law to determine
who was more qualified.  If we had a cheap test, there would be no
reason not to require it, just as we require stock dealers to accept the
high bid.  Feminist dealers are no different from religious ones:
neither is permitted to stray from the market norm.  Personality is to
be left at home; in the workplace, all that counts is measurable
productivity.

Workplaces aren't living rooms, and I see no reason why they should be
treated as if they were.  Employers ought to base their decisions on
productivity, not personality.  The anonymous market seems like a better
starting point for analysis.

But productivity can't be fully separated from personality:  people
don't leave behind their families, their belief systems, their non-work
commitments when they join the workplace.  Many even treat the workplace
as an extension of their living room -- making friends there! -- rather
than an anonymous market devoted only to money making.

Even as the market drives us to treat each other, and ourselves, as if
we could separate out our measurable productivity, bring that to work
and leave everything else at home, we resist that imperative in all
sorts of ways.  Rick Duncan wants to restructure the market to
accommodate his church.  Feminists want work restructured to accommodate
their care-giving obligations.  The anti-discrimination laws, most of
the time, oppose both concepts:  even affirmative action is centrally
concerned with who gets the existing slots, not about restructuring the
slots.

In the end, I think, this is a permanent struggle.  The market ideal of
anonymity is foundational to much of our ability to live together, work
together, and get rich together.  But taken too far, it destroys the
very values it seeks to promote.   The living room idea of self-governed
small scale community battles the anomie, not just the anonymity, of the
market -- but always threatens to destroy our life together: as everyone
who attended Jr. H.S. knows, for every supportive in-group clique, there
is an out-group.  Support the cliques too much, and you have gang
warfare.

And does this help decide if the wrong kind of Christian can sell books
in the Christian book shop?  It may well depend on whether Rick Duncan
is right to view (the right kind of) Christians as a tiny embattled
minority struggling to barely survive in a sea of secularism -- in which
case, who cares?, the discrimination is wrong but de minimus on a market
view, and perhaps extremely valuable on a living room view to a small
group needing exemptions from ordinarily applicable rules to avoid
extinction, or Steve Jamar is right to see an hegemonous religious
society imposing its peculiar values on significant minorities -- in
which case, the living room view carries little weight and integration
of minorities into the market may well require significant legal
enforcement of the market norms.

The more the (right kind of) Christianity is the wave of the future and
not an atavistic remnant, the more the (right kind of) Christian
bookstores should be governed by the norms of the market place, where
the only proper inquiry should be about externally verifiable
productivity, and religious belief should be a BFOQ only under the most
extraordinary circumstances, unlikely to obtain in any retail
institution open to the general public (but perhaps fine in the church's
own bookstore inside).

--




Daniel J.H. Greenwood
University of Utah College of Law
332 S. 1400 E. Front
Salt Lake City UT 84112-0730

                            


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