Right to commerce

[Jonathan Buhacoff]

The proposed right:

No person shall be unfairly denied from buying or selling goods or services. No person shall be unfairly denied entry to public places where goods or services are bought or sold. No person shall be unfairly denied from seeking or obtaining employment.

Intent:

This right is intended to protect every person’s ability to lawfully buy or sell property, goods, or services, to enter places where property, goods, and services are bought or sold, and to seek and obtain employment.

The word unfairly in this right refers to a denial that is based on an unrelated characteristic of a person such as the color of their skin, their sex, or their religious or political beliefs, or national origin.

A fair denial is rational and is applied consistently to all people.

Discussion:

When this right is protected, people won’t be faced with phrases like “we don’t serve your kind here” when they want to buy something, or “why don’t you apply for a job somewhere else” when they want to work somewhere.

If a person is caught stealing from a store, that store can fairly deny entry to that person in the future and it would not violate the person’s right to commerce. If a store denies entry to a person because they look like they might want to steal something, that’s a subjective judgment and violates the person’s right to commerce. However, the store could demand proof of purchase power prior to entering the store, or for anyone who looks suspicious to hand over a security deposit prior to entering the store. That would be fair because if a person doesn’t have money to buy anything, they don’t need to be in the store.

The proposed right to commerce is closely related to the proposed right to equal opportunity, but is separate to ensure that it’s clear that all people have the right to buy groceries, the right to sell what they previously bought or made, the right to enter markets or stores where things are bought and sold, and the right to seek employment.

A company may require employment applicants to consent to a criminal and financial background check. If a person is denied employment due to refusing to consent to such a check, or due to unfavorable information being found in such a check, that would be a fair denial that does not violate the person’s right to commerce. However, if the company only requires such a check for applicants based on the way they look, their sex, their religion, or other characteristics that are not relevant to the job, that would be an unfair denial.

A religious institution can fairly require its members and employment applicants to be believers of the same religion because it’s objectively and rationally related to the service being provided. However, the government is not a religious institution, and most companies are also not religious institutions, so other companies and the government must not discriminate applicants by their religion or lack of religion.

Any organization such as a religious institution, non-religious company, or the government, may outline requirements for each job and require candidates to meet these requirements to be considered, and deny candidates who do not meet the requirements. This would be a fair denial. For example, a school hiring teachers may require the candidate to have earned a teaching credential from an accredited university. This is related to the job and anyone applying without such a credential may be immediately dismissed from consideration without violating their right to commerce. Another example is when a religious organization needs to hire or elect a religious leader or a teacher, it obviously needs to hire one who is a member of the same religion. When a non-religious organization needs to hire or elect a non-religious leader or a teacher, it must be allowed to select someone who is not religious. However, the hiring of anyone else who merely works in the organization such as a secretary or food preparation or cleaning must hire without regard to religion. The organization may still impose work or food preparation rules that anyone can follow, even if they are not members of that religion.

There are some cases where discrimination based on these attributes is fair and in these cases it is allowed because the right to equal opportunity only protects against unfair discrimination, and does not limit the ability of organizations to set fair job criteria and provide an equal opportunity to all applicants. For example, some jobs demand that the employee be able to lift some amount of weight, or be physically fit to run at a certain pace for a certain distance, or something like that. The right to equal opportunity means that employers must consider all qualified applicants. The right does not require employers are not required to have different standards for males and females, religious or non-religious, etc. They can have one set of standards but anyone must be given equal opportunity to demonstrate they are qualified.

Another area where an employer may set fair job criteria that include physical attributes discrimination is fair is in entertainment. A producer looking to cast people with a certain appearance is allowed to set that as the criteria. However, once the criteria is set any qualified applicant must be considered and given equal opportunity regardless of the other factors. For example if a part is intended to be played by a middle-aged black female with a New York accent, the candidates will be limited by that but they cannot be denied due to their national origin or religious beliefs, place of birth, etc. and specifically any middle-aged black female who can speak with a New York accent, whether or not that person actually lived in New York, should be considered for the part.

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