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.