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The Right to Hire and Fire

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Do businesses have the right to hire whomever they want for a particular job? Most Americans would agree that they certainly do. But when you ask the same people whether businesses have the right to not hire whomever they don’t want for a particular job, most of them will say that it depends on the reason someone is not hired. And the same thing is true if you ask the typical American whether businesses have the right to fire whomever they want from a particular job. Most of them will say that it depends on the reason someone is fired.

If you really want to complicate matters when it comes to hiring and firing, just introduce the subject of religion. What role, if any, can or should religion have in the hiring and firing process? Obviously, if someone is interviewing for a position as a minister of some sort, then everyone expects, and everyone accepts, that a Catholic church will hire only a Catholic, a Unitarian church will hire only a Unitarian, a Jewish synagogue will hire only a Jew, an Islamic mosque will hire only a Muslim, and an evangelical church will hire only an evangelical. But other than that, most Americans would say that a person’s religious beliefs and practices should never have anything to do with whether someone is hired or fired, while some Americans would continue to say that a person’s religious beliefs and practices might have something to do with whether someone is hired or fired.

In a free society, is it possible to be illegally not hired? Is it possible to be unjustly not hired? The first question must always and everywhere be answered in the negative. And of the second question it can only be said, Perhaps in certain situations. However, in a free society, things are not the same when it comes to firing. Is it possible to be illegally fired? Is it possible to be unjustly fired? This time, of both questions it can only be said, Perhaps in certain situations. The other question to be considered is how religion affects the legality and justness of hiring and firing. The short answer is, in a free society, it doesn’t.

Much of this runs contrary to the thinking of most Americans, and especially those focused on anti-discrimination laws and religious exemptions instead of freedom and property rights. But first, let’s look at some recent firings that did take place and some hirings that didn’t.

Firings

A number of high-profile firings have taken place over the past year — many related to religion in some way.

ESPN baseball analyst Curt Schilling was fired in April of this year after commenting in a Facebook post in support of a North Carolina law that bars transgender people from using bathrooms and locker rooms that do not correspond to their birth sex. “ESPN is an inclusive company,” said the network in a statement. “Curt Schilling has been advised that his conduct was unacceptable and his employment with ESPN has been terminated.”

Also in April of this year, the presiding bishop of the Episcopal Church, Michael Curry, fired two top executives for failing “to live up to the church’s standards of personal conduct in their relationships with employees.” The deputy chief operating officer and the director of public engagement and mission communications were accused of misconduct and put on administrative leave late last year. The exact complaints against the two men have not been made public.

In February of this year, the University of Missouri board of curators voted 4-2 to fire communications professor Melissa Click for failing to meet the standards expected of faculty members after she was captured on video in a confrontation with a police officer and a student journalist during a campus protest last year over racial issues. She was charged with misdemeanor assault after the skirmish, and had been suspended with pay from the school since January 27. In a statement, Click said she apologized for her behavior but would not apologize for her “support of black students who experience racism at the University of Missouri.” Click claims that she was fired without due process when the university’s board of curators “overstepped their authority.” She has appealed her firing and is now getting support from the American Association for University Professors.

Late last year, Wheaton College, an evangelical liberal arts college of about 3,000 students about an hour west of Chicago, placed on leave one of its political-science professors. Associate Professor Larycia Hawkins was put on paid administrative leave “in order to give more time to explore theological implications of her recent public statements concerning Christianity and Islam.” Hawkins had posted on Facebook a statement to the effect that Christians and Muslims worship the same God. She first came to her employer’s attention after she wore a hijab (a Muslim veil) as an act of solidarity with Muslims, although the college maintains that her suspension “resulted from theological statements that seemed inconsistent with Wheaton College’s doctrinal convictions, and is in no way related to her race, gender, or commitment to wear a hijab during Advent.” Following an impasse between the professor and the administration, a “Notice of Recommendation to Initiate Termination-for-Cause Proceedings” was given to Hawkins in January. In February, the college and the professor “found a mutual place of resolution and reconciliation” and “reached a confidential agreement under which they will part ways.”

Also late last year, about 150 Muslim workers were fired from their jobs at a Colorado meat-packing plant after staging a walkout after a dispute over the accommodation of prayer in the workplace. Cargill Meat Solutions says it “makes every reasonable attempt to provide religious accommodation to all employees based on our ability to do so without disruption to our beef-processing business.” Since 2009, the company has had two “reflection rooms” for prayer at its Fort Morgan plant. The plant employs about 2,000 people, including more than 400 immigrants from Somalia. During a shift on a Friday, eleven employees requested to go to prayer together. After being told that they needed to go in smaller groups, all of the employees went to prayer together, but ten resigned at the end of the shift. On the following Monday, approximately 200 employees refused to show up for work, apparently fearing that the company wasn’t allowing some workers to take prayer breaks. Cargill said it fired the workers, after “multiple attempts were made to discuss the situation with local Somali employees and union representatives” without a successful resolution. According to company policy, “Employees that do not show up for work, or call in, for three consecutive days were at risk of termination of their employment.”

Hirings

But it’s not just firings that have made national news over the past year. Late last year, the Massachusetts Superior Court ruled against a Roman Catholic school in the state that had withdrawn an offer of employment to a man when he identified another man as his husband.

Fontbonne Academy is an all-girls’ preparatory high school in Milton, Massachusetts, sponsored by the Congregation of the Sisters of Saint Joseph of Boston. The school’s stated mission is “the education of young women rooted in gospel values and the teachings of the Catholic Church.” After Matthew Barrett was hired as the food- service director at the school, he listed his “husband” as an emergency contact person on a “new employee” form. But because hiring someone in a same-sex relationship was deemed to be inconsistent with both the teachings of the Catholic Church and the school’s policy that all employees be role models for the students, his employment offer was rescinded. With the help of Boston-based GLBTQ Legal Advocates & Defenders (GLAD), Barrett filed a complaint with the Massachusetts Commission Against Discrimination. The case ended up in Massachusetts Superior Court in May 2014. There, Justice Douglas Wilkins ruled in Barrett v. Fontbonne Academy that the school had illegally discriminated against Barrett on the basis of his sexual orientation and gender.

After the decision, Barrett’s attorney issued a press release stating, “Religiously affiliated organizations do not get a free pass to discriminate against gay and lesbian people. When Fontbonne fired Matt from a job that has nothing to do with religion, and simply because he is married, they came down on the wrong side of the law.” However, the executive director of the Catholic Action League, C.J. Doyle, remarked that “religious freedom consists not merely of the right of worship, but of the right of religious institutions to govern their internal affairs free of state interference.” He also commented that the judge’s ruling “would compel Catholic institutions to hire those who reject and despise Catholic teaching, fatally impairing the constitutionally protected right of those institutions to carry on their mission. This is precisely the sort of ‘excessive entanglement’ of government with religion decried and prohibited by the U.S. Supreme Court.”

Earlier, there was the case of the Muslim girl who claimed that she wasn’t hired for a job at an Abercrombie & Fitch store because she wore a hijab to her job interview. She complained to the Equal Employment Opportunity Commission (EEOC), which filed a lawsuit against Abercrombie. After winning her case at the federal district court level and then losing at the U.S. Court of Appeals, she won an 8-1 U.S. Supreme Court decision against Abercrombie & Fitch in 2015 — seven years after she initially applied for the job.

Hiring

As it stands now in contemporary society, if someone from the ever-growing list of protected classes (women, minorities, veterans, handicapped, ex cons, pregnant, elderly, LGBT, et cetera) is not selected for a particular job, ultimately denied employment at some point in the hiring process, or is not interviewed for a job that he has applied for in the first place, he can allege that he was illegally discriminated against and file a complaint against his potential employer with a state or federal “equal-opportunity” agency or commission.

But in a free society, no one could illegally not be hired, ever. That is because no one has the right to any particular job no matter how qualified he is. It doesn’t matter how much experience someone has, how much talent he has, how much education he has, how much seniority he has, how much skill he has, how many recommendations he has, or how much knowledge he has — he still doesn’t have the right to be offered a particular job. It doesn’t matter how healthy he is, how little pay he is willing to work for, how honest he is, how hard a worker he is, how punctual he is, or how much of an asset he would be in some position — he still doesn’t have the right to work for a particular company.

That means that, in a free society, business owners, and their agents, have the absolute right of discrimination in hiring. In a free society, employment discrimination must be permissible for any reason: race, creed, color, religion, national origin, ancestry, sexual identity, health, disability, height, weight, sex, age, pregnancy, marital status, sexual orientation, political ideology, ability, experience, education, socio-economic status, criminal record, hair color, facial hair, et cetera. And in a free society, discrimination must be permissible on any basis — including stereotypes, prejudice, hate, “sexism,” xenophobia, “homophobism,” bigotry, or racism — no matter how insensitive, unfair, erroneous, illogical, irrational, nonsensical, or unreasonable the basis is, or is perceived to be.

And as it relates to religion, in a free society, religious institutions would not need to be granted certain exemptions to allow them to practice discrimination in hiring for positions in which religion is an integral part of the position — like a church minister or a seminary professor. Just as any other business or organization, they would be permitted to discriminate on the basis of religion or anything else for any position — from president on down to janitor — on any basis and for any reason. At least in a free society they would.

But discrimination can work both ways.

While government agencies and public institutions have no business hiring on the basis of some Affirmative Action guidelines — that is, giving preferential treatment to someone on the basis of his race, color, national origin, or ethnic group — it doesn’t follow that preferential treatment in hiring on the basis of those or any other criteria couldn’t be practiced in a free society by the private sector. If a private entity — from a large corporation on down to a small family business — wanted to hire only people of a particular race, religion, age, or sexual orientation — and discriminate against all others — in a free society it would be perfectly free to do so.

The case of Matthew Barrett, the man in a same-sex relationship who was denied employment by a religious institution, is a simple one. In a free society, the school that interviewed him and offered him a position could ultimately not hire him for any reason or no particular reason. The religious orientation of the school and the sexual orientation of the applicant are irrelevant.

How, then, could someone be unjustly not hired? The only possible way is for some agent of a business owner to disregard any hiring guidelines he is given to follow. Suppose, for example, that a business owner wants an ethnically diverse work force because he reasons that it might be better for business, believes that there is strength in diversity, or thinks it makes a great public-relations statement. But suppose also that the business owner’s personnel manager whom he has entrusted to actually do the hiring for the business is a closet racist and disregards the business owner’s instructions and hires only applicants who look and sound just like him. Then it might be said that an otherwise qualified applicant was unjustly not hired. But, since no one is entitled to any particular job, in a free society there would be no legal recourse available to the applicant. The disconnect between a business owner’s wishes and a personnel manager’s practices is an internal company matter. It would be entirely up to the business owner to make sure his wishes are carried out. A personnel manager who does not follow company hiring guidelines could simply be fired. Or could he?

Firing

Just as there is no right to become employed in a particular job, so there is no right to stay employed in a particular job. Yet, the question of firing is somewhat different from that of hiring.

No one objects to someone’s being fired “for cause”: theft, embezzlement, financial mismanagement, serious violation of some company policy, et cetera. And it is also reasonable that any position at a private company — from a large corporation on down to a small family business — held by any employee — from president on down to janitor — could be protected in some way by a union or employment contract, a tenure or seniority system, certain policies and procedures, or simply an agreement of some kind. Such things are true now, and would be equally true in a free society. But barring any of those situations, the right of an employer to fire an employee is absolute, even without “cause.” At least in a free society it would be.

That means that, in a free society, employers would have the right to discriminate against current employees just as they do against potential employees. Employment discrimination would be permissible on any basis and for any reason. Only those whose job is protected in some way would have any legal recourse if they were fired. Only they could be illegally fired.

Now, once someone is employed, it is much less likely that he would be fired because of his race, sex, age, or some other physical characteristic. If an employer had some objection to the way an applicant looked, he would simply not hire him in the first place. But as ridiculous as it sounds, and as uncomfortable to employees as it might be, in a free society, a business owner could conceivably fire one of his employees after waking up one day and deciding to rid his work force of those with red hair or green eyes or tattoos. (It sounds no more ridiculous than that a business might have to enact a quota system and hire personnel on the basis of race or sex to avoid harassment by federal and state anti-discrimination bureaucrats and regulators.) The issues of religion, sexual orientation, health, and other matters that may not be outwardly apparent, would be more likely to cause an employee to lose his job at some point after the hiring process. So again, in a free society, a business owner could conceivably fire one of his employees after waking up one day and deciding to rid his work force of smokers or homosexuals or Presbyterians.

The case of the recent high-profile firing of ESPN baseball analyst Curt Schilling, who some people thought offended transgender persons, is likewise a simple one. Even though Schilling was sacrificed to appease the gods of political correctness, in a free society, businesses have the right to make such sacrifices.

How, then, could someone be unjustly fired? Again, the only possible way is for some agent of a business owner to disregard any firing guidelines he is given to follow. And again, since no one is entitled to any particular job, in a free society there would be no legal recourse available to the employee. It is entirely an internal company matter. All illegal firings are unjust, but not all unjust firings are illegal.

In conclusion, because no one has the right to any particular job, a free society must include the right of employers to hire and fire employees at will, without any interference from the government.

This article was originally published in the July 2016 edition of Future of Freedom.

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