Monday, December 19, 2005

Smoker's rights?

I must disagree with something our friend Josh Hendrickson wrote. Should a private company be able to dictate what you cannot do outside of the workplace? Josh says no, but I say yes. My position is not from pragmatism, that non-smokers tend to be healthier and more productive. I argue strictly from a perspective of pure property rights.

No one forces you to work at a particular company, so by accepting employment there, you accept certain (lawful) conditions and restrictions. If a company does not want to hire someone who engages in certain activities away from work, it should be a company's right to refuse employment to such a person. If it's clearly stipulated that the company does not want to hire smokers, it should be their right: the company owner, through the managers, can set requirements of who can and cannot come onto the property, whether for work or other purposes. Otherwise it becomes a case of forcing the company to dispose of its private property in a manner against the owner's will.

Employment is a contract, even if there is no formal paper. A contract must have offer and acceptance, a "meeting of the minds," capacity of both sides to enter into contracts, consideration for both sides, and legality. The latter is what applies here: employment is not valid if a party is required to violate the law. For example, it's not a legally enforceable contract when a company hires you to murder or maim someone (though there is bound to be a way the company will "enforce" it on its own). But this begets the question: what if a municipality or state passes a law stating that a company cannot refuse to hire smokers? Wouldn't a company then be in violation of the law and jeopardize the enforceable status of its employment contracts?

I maintain that such a law would be wholly improper, if not unconstitutional. It violates the basic principle of property rights: that you have the right to dispose of your property in any manner you see fit, so long as you do not infringe on the life, liberty and property of others. If I own a company and refuse to hire you, I am not infringing on your rights. You do not have any rights to my property, so you cannot tell me how to dispose of it. That includes forcing me to employ you against my will.

For this reason, I believe anti-discrimination laws are wrong. First, they violate the principle of property rights. Second, these laws, and policies like affirmative action, push hiring managers and admissions officers toward accepting people who are less skilled over those who are more capable. Third, these laws allow ignorantly sexist and racist company owners to stay in business. A company should be perfectly free to discriminate against women and minorities; it should be free to shoot itself in the foot. A company that discriminates against an entire group will inevitably deprive itself of someone with skills and talent, who will then be hired by a competitor that will subsequently benefit from those abilities. Or, the company will deprive itself of customers. Few things can better embody the very nature of competition.

Besides, who is the best determiner of who should be hired and who should be refused employment? Is it government, or the property owner? If government should have a say in the matter, where is the line to be drawn? If history is to be our guide, once legislators and bureaucrats start defining any boundaries with respect to property rights, not only do they do so according to their personal passions and prejudices, but they allow a whole world of rent-seeking to open up.

Unfortunately, the very nature of property rights has been ignored in the U.S. for several decades. People have been conditioned to believe that, in the name of "fairness" and "civil rights," they have a right to tell others how to dispose of their private property. When it comes down to fundamentals, there's no difference between local organized crime insisting on doing your landscaping and government forcing you to hire someone (instead of another candidate you like better). Both use the threat of violence to coerce you into using your private property in a manner you do not want: the former will break your legs or vandalize your house, and the second will jail you. The only difference is that, as general libertarian philosophy goes, the state is that which has a legal monopoly on the use of force.


Blogger Mike said...

Yeah, myself and another libertarian classmate of mine tried making the "anti-discrimination laws are stupid" argument in my high school's social justice religion class one day. We got shouted down by FemiNazis Local 533, so we just sat back and smirked for the rest of class.

Kinda like the time our textbook tried to tell me that a single B-2 bomber cost $10 billion. My mouth dropped open in disbelief that they could have their facts that f#^ked up, and then I smirked.

I did a lot of smirking in that class...

Monday, December 19, 2005 4:17:00 AM  
Blogger Josh said...

Ah, I love a good debate.

My problem is with the fact that companies target the easy target of the moment, smokers. What determines who is a smoker? Some smoke when they drink. Some smoke cigars at weddings and when children are born. Are these considered smokers? What about a non-smoker who is married to or lives with a smoker? We have all heard the horrible dangers of second-hand smoke. Aren't they just as likely to have health problems? Similarly, if you are an occasional smoker, what is to stop you from lying in the interview?

By no means am I calling for a law forcing companies to hire smokers. Why are companies singling out smokers? Is excessive drinking better for your health than smoking? What about those who partake in unprotected sex? Or those who are overweight?

Companies are good at producing goods and services, not at setting moral boundaries.

Monday, December 19, 2005 9:55:00 AM  
Blogger Perry Eidelbus said...

But it's irrelevant whether a company is good or effective in setting personal guidelines for its workers, or the particular group it singles out. Again, I'm arguing purely from a perspective of property rights. A company can set the terms of employment that it wants. It's a violation of the owner's property rights to force them to employ you against the company's will.

It's a different situation if you have a formal contract, and the company initiated smoking restrictions after your employment began. You could argue then that there was no such condition in the original contract, and a court could well hold your employer to just those terms.

Enforcement is a separate issue. Let's say a company wanted to set up monitoring devices in your home. They couldn't unless you agreed to it. On the other hand, they might require monitoring as a condition of employment, and if you don't agree, they won't hire you. It might seem like Big Brother, but it's important to remember that you're voluntarily accepting the condition. Nobody's forcing you to work there.

There was a case a while ago of some pervert who made a couple of young women (over 18) sign a contract when they were hired. It stipulated that he could spank them as disciplinary measures, though from what I recall it was not as bluntly stated. They couldn't believe it, to say the least, when he spanked them (at separate times), and there definitely was no "meeting of the minds," so it was definitely not a valid contract.

On the other hand, a few conditions of employment where I work (and it's the same case with most financial firms) require us to stay within the Code of Ethics, and to keep the firm abreast of all our securities holdings. If we don't, penalties can be severe, up to and including termination. That's a valid and pretty common contract in the financial sector, especially prohibitions on having brokerage accounts outside of the firm and any permitted affiliates. It might be my right to buy stocks and bonds through whichever brokerage house I want, but it's also my employer's right to refuse to continue my employment because I violated the rules.

Monday, December 19, 2005 11:19:00 AM  
Blogger Cody Wolf said...


I believe a company hires someone to perform a specific set of job duties as defined in the employment agreement.

If you perform those duties then you have met your end of the bargain and you should be paid according to the terms defined.

What you do on your own time away from work is your own business.

I see your point, but do you honestly want the rich/elite that run things in the world dictating how the regular joes live their lives?

Life, liberty and the pursuit of happiness are our inalialbe (spelling??) rights. Big business needs to screen and make sure employees are educated and able to perform their duties.....nothing more...

What ever happened to the defenders of personal privacy?

Wednesday, December 21, 2005 9:50:00 AM  
Blogger Perry Eidelbus said...

Personal privacy is one thing, but your personal life can certainly be your employer's concern, and for whatever reason (or no reason) they desire. If you don't like the restrictions, you can choose to work elsewhere. They would have to be enumerated pretty well to be enforceable, but they would be valid portions of an employment contract.

If "the rich" dictate how people can live their lives, that is their right because they own the property, and the other people do agree to the terms. Remember that a contract is all about giving up something to receive another thing, and it is purely voluntary. For example, I'm currently fighting with my next-door neighbor, who lives on the other, separate side of this divided house (sort of like a duplex). In the last while he's begun smoking incessantly, and it's coming right through the walls of the divided house. Does he have the right to smoke? Not only no, but hell no, because he gave up that right when he signed the lease. I just left another very angry, mildly threatening message on my landlord's answering machine, and he'd better kick this bum out on New Year's Day as he has promised. At this point I don't give a ____ about the time of the year, or if he can find a place to live.

Competition comes into play because a company will see more benefit than detriment in hiring a smoker. Smoker-friendly companies will be able to tap into the talents and abilities of smokers, whereas anti-smoker companies would deprive themselves. Or a landlord might rent to smokers, who are willing to pay a higher price to live somewhere where smoking is allowed.

Ultimately it should be strictly the employer's decision as to who they want to hire and who they don't. A company might say that smokers need too many breaks and cost too much in health insurance, or it might have no good reason at all. A landlord should be able to set whatever restrictions he wants on his renters (smoking, pets, etc.). It's still up to the property owners, because it's an issue of property rights, and again, people enter into the agreements purely voluntarily.

Do you have the right, and often it is using the power of the state and its laws, to force someone to dispose of his private property against his will? That's what happens when government tells an employer, "We know you don't want to hire any smokers, but we will make you."

For the same reason, I consider gay marriage a non-issue. It's not really about rights or recognition. It's only about same-sex couples trying to get recognition under the law, so that they can force companies to give them benefits, against the companies' will. I really couldn't care if two "partners" are married or not. But I will care if I own a company and am forced to give benefits to someone I don't consider a spouse.

If it's my private property, the only definitions that matter are mine, not governments. Unless I cause injury to someone, it's irrelevant if I'm one of "the rich": it's my property, and it's my right to determine and restrict who uses it. Refusing to hire someone, i.e. forbidding someone to use my private property, isn't injury.

Wednesday, December 21, 2005 8:36:00 PM  
Blogger Debbie said...

Hi Perry. I live in Ohio where the government is telling private business owners (bars, restaurants,bowling alleys) that they cannot allow smoking in their privately owned facility. Do you agree with that?

Saturday, November 25, 2006 12:46:00 PM  
Blogger Perry Eidelbus said...

Hi Debbie. I don't believe government has any authority or business telling a purely private establishment that they can't allow smoking indoors. As you pointed out, the bowling alleys are privately owned. Since people aren't forced to go into them, they accept smoking as a condition of going inside.

Declaring that patrons have "a right to a smoke-free environment" is the same as arguing they have a right to other people's property.

Sunday, November 26, 2006 12:57:00 PM  

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