Is Title VII Necessary? Is it even Constitutional?

Freedom of speech has always been understood to encapsulate a right to associate for the purposes of engaging in activities that are protected by the First Amendment.  But there are clearly limits to this.  One of them is that employers are prohibited from discriminating in the workplace under Title VII.  Does this make sense?

There are a couple of cases that suggest it doesn’t.  The Jaycees, a non-profit organization, used to provide young men with an “opportunity for personal development and achievement and an avenue for intelligent participation in the affairs of the community.”  Regular membership was limited to men between 18 and 35 but associate membership was open to older men and women.  However, associate members did not have the right to vote or hold office.  The Minnesota Department of Human Rights found that this policy violated the state’s anti-discrimination law in spite of the group’s First Amendment objections.

In 1984, the Supreme Court agreed.  The Court, in Roberts v. U.S. Jayces, concluded that “the right to associate for expressive purposes is not … absolute” and that “infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”  Here, the state’s compelling interest was eradicating discrimination against its female citizens.  Importantly, according to the Court, imposing this nondiscrimination policy would not impede the organization’s ability to engage in its protected associational conduct.  In other words, the group could still promote the interest of young men and give women voting rights within the organization.  Voting rights for women did not, according to the Court, stand in the way of the organization’s objectives.

However, a second case decided in 2000 complicates things.  An adult scoutmaster in the Boy Scouts had his position revoked after the organization had learned that he was both gay and a gay rights activist.  The New Jersey courts concluded that the state’s anti-discrimination statute prohibited the Boy Scouts from revoking the scoutmaster’s position.  The Supreme Court, however, disagreed.  In Boy Scouts of America v. Dale, the Court held that the First Amendment prohibited the application of the statute to the Boy Scouts.  In so doing, the Court accepted the organization’s assertions that “homosexual conduct is not morally straight” and that it did not “want to promote homosexual conduct as a legitimate form of behavior.”

The point of my post is this: if the Boy Scouts can discriminate on the basis of sexual affiliation, why can’t a law firm? Or an investment bank? Or any other entity that does not want its “expressive activity” to be viewed as such? After all, doesn’t every organization care about how it is perceived and is thus engaging in “expressive activity”?  Does the same go for discrimination on the basis of race, gender, or religion? There are some, most notably Richard Epstein, who think that Title VII of the Civil Rights Act is unconstitutional.  He writes:

If the First Amendment applies so long as the organization “merely engages in expressive activity that could be imparied,” then it follows that every organization engages in expressive acitvity when it projects itself to its own members and to the rest of the world.

It’s one thing to prohibit the states from passing laws that permit white and black water fountains or restrooms in public places.  It’s quite another to require private organizations to associate with those they do not want.  A few posts ago, I noted that there are societal pressures to not discriminate.  Given our stage in social evolution, bigotry is taboo in America and the 21st century media provides an important check upon it.  Do we still need to require by law that employers not discriminate when they essentially would discriminate at their own risk?

Discrimination is abhorrent.  But so is government forcing private parties to associate and express themselves unwillingly.  If organizations want to discriminate, I say let them do so and pay the price they will inevitably pay.