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.