From: Michael Froomkin <froomkin@law.miami.edu>
Date: Tue, 14 May 1996 19:39:13 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: Civil liberties of employees (Re: FYB_oss)
In-Reply-To: <adbbd23b000210049f3d@[205.199.118.202]>
Message-ID: <Pine.SUN.3.91.960513230740.1838G-100000@viper.law.miami.edu>
MIME-Version: 1.0
Content-Type: text/plain


On Sun, 12 May 1996, Timothy C. May wrote:
 
> Actually, one _does_ check one's Constitutional rights "at the door" (of an
> employer), and the confusion over this issue is pervasively destroying real
> Constitutional rights.

Yes and no...and kinda no.

Yes: your employer can require as conditions of employment many many 
things that the government could never require, e.g. the many examples 
Tim gives.

No: The constitution prohibits slavery.  This is in fact the *ONLY* part 
of the constitution that *directly* regulates private behavior 
(everything else either empowers or disempowers the goverment).  Hency 
your employer cannot enslave you constitionally.

And "sorta no":  The constitution empowers congress to legislate in many 
areas.  Congress has legislated many "civil rights" that do not arise 
directly from the Constitution, but rather from Congress's use of the 
powers delegated to it under that document.  Thus, an unsuspecting reader 
might be mislead when TCM serves up the bait by writing...

[...]
> 
> The Constitution is about what the government can and cannot require, not
> about what I as an employer can require. This point is frequently confusing
> to people who, in my opinion, haven't thought about it. Thus, a "Hooters
> girl" suddenly decides she doesn't like "displaying herself" to men and
> announces that her civil liberties are being violated by being told to wear
> skimpy outfits.
> > 

The issue here isn't a constitutional issue.  It's a *statutory* right. 
And a real one.  Sex discrimination in employment is prohibited by law. 
We can call this a "civil right" or something else, but the if the facts
alleged in the case to which TCM refers are as claimed, they seem to have
a fairly good case under the law as it stands.  And there's a lot more
than skimpy outfits at issue, including a refusal to hire men for what are
allegedly food service jobs (gender may only be a determination of
employment if it is a bona fide occupational qualfiication, e.g.  policing
the showers in the gym; gender is not a BFOQ for food service jobs.)

[I am away from Miami from May 8 to May 28.  I will have no Internet 
connection from May 22 to May 29; intermittent connections before then.]
 
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm there.