The Right to Discriminate Against Ellen Pao

by Jacob G. Hornberger
Mar. 30, 2015

Silicon Valley executive Ellen Pao is licking her wounds after a jury ruled against her last week in her gender-discrimination suit against former employer Kleiner, Perkins, Caufield, & Byers. Pao had accused the firm of not promoting her because she's a woman. The jury ruled against her by finding, as a factual determination, that she was not the victim of gender discrimination.

But the obvious question arises: Why should such a case even have to reach a jury to determine the factual validity of Pao's allegations? Why shouldn't the firm have the right to discriminate against her for whatever reason it wants, including the fact that she is a woman? The firm is the owner of the business, isn't it? Why isn't it free to do what it wants with its own money?

Let's assume that John has $10 million in cash in the bank. Does Jane have the right to require John to use his money to open up a business so that she will be hired? I think most people would say that that's ridiculous -- that Jane certainly has no such right. It's John's money. If he wants to keep it in cash, that's his right. If he doesn't want to use it to start up a new business, that's his right.

Let's say that John decides to go ahead and use his money to start a new business, one that he intends to run all by himself. Does Jane have the right to require John to hire her? I think most people would say: Of course not. John has the right to run his business all by himself. It's his money, after all. Jane has no right to a job in John's business. She has no right to force him to give some of his money to her in return for labor services that he isn't interested in purchasing.

Let's assume that John decides to hire five people in his new business. Why shouldn't the selection of those five people be up to him? It's his money, isn't it? It's his business, isn't it? Why should Jane be able to force John to hire her if that's not what he wants to do? If she wants to start up her own business to compete against John's business, she certainly has the right to do that. But she has no right to force John to use his money to hire her in his business.

Suppose John decides to hire five rich white guys and specifically announces that he will never hire women, blacks, Jews, the poor, or seniors in his business. Why shouldn't he be free to do that? It's his money, isn't it? It's his business, isn't it? Why should women, blacks, Jews, the poor, and seniors have the right to force John to give them his money in return for labor if that's not what John wants to do?

Indeed, how can people in society truly be considered free if they're not free to associate with whomever they wish to associate? And doesn't the fundamental right of freedom of association necessarily entail freedom of non-association?

If Jane doesn't approve of John's hiring practices, she is free to decline to buy whatever his new business is selling. She also has the right to publicize John's hiring practices and to persuade other people to boycott John's business.

But Jane has no moral right to force John to hire her or anyone else. That's because it's his money and his business, not hers. Private property and individual freedom necessarily entail a right to run one's business any way one wants.
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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News' Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano's show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.