All Commentary
Wednesday, July 1, 1964

The Land of Free Choice

Mr. Roberts is an investment counselor in New York City.

The land of the free gained its glorious and enviable reputation through the principles of individ­ual liberty and freedom of choice that were stated in the Declara­tion of Independence and guar­anteed by the Constitution and its amendments.

Until March 12, 1945, when the New York State legislature en­acted the first so-called antidis­crimination law, no one in this country seriously questioned the right of every citizen in it to make his own choices freely and independently regarding his own business or property, so long as the choice did not infringe on the rights of others.

Under the provisions of the New York State antidiscrimina­tion law an employer is denied the right to choose his employees freely. It states that an employer may not discriminate against an applicant for a job because of race, color, religion, or place of national origin.

It is termed a law against dis­crimination; but it is patently a law against freedom of choice be­cause choice and discrimination are inseparably one and the same thing, each being one side of the same coin. One cannot arrive at a choice without discriminating. For example, when a shopper buys a package of AB coffee, she has thereby discriminated against XY and all of the other brands on the shelf.

Every act of selecting is at the same time a process of discrim­inating. When an employer se­lects an applicant for a job, he has necessarily discriminated against all the other applicants, whatever their race or other clas­sification may be. For instance, if there are five white men apply­ing for the same job, when the employer makes his selection he has unavoidably discriminated against the other four. Those who are left out have no recourse, and there is nothing more the employ­er can do about it, whatever his wishes may be.

However, under the practical workings of the antidiscrimina­tion laws, an employer may not make a free selection if one or more of the applicants are of a race or religion other than his own. An employer may discrim­inate against members of his own race or religion with impunity, and he often is compelled to do so; but if he fails to employ mem­bers of other races and minority groups, he runs the risk of being summoned before a commission and penalized.

It Can Only Transfer a Job from One Person to Another

Even a superficial analysis of this legislation will show that the only end it can accomplish is to transfer a job from one person to another, from one of the em­ployer’s choice to one who is not his choice. These minority-group members have therefore been moved up into a preferred posi­tion over the majority-group ap­plicant. It is a one-way operation with all of the transferring being made to the minority groups, never away from them.

In each case in which an em­ployer has been forced by a so-called antidiscrimination law to give a job to a Negro, Cuban, or Puerto Rican, he has been forced to sidetrack a white man or some­one else of his own free choice. Such a result of the practical workings of this law brings us to the inescapable conclusion that it should be labeled an antichoice law instead of an antidiscrimina­tion law.

When in March, 1945, the first antidiscrimination law was signed by Governor Dewey of New York, there were employed by the vari­ous parishes, schools, hospitals, nursing homes, and administra­tive departments of the Catholic Archdiocese of New York approx­imately 14,000 people, not includ­ing the clergy. All but a small fraction of 1 per cent of these people were Catholic, and why not? If there had been ten times as many employees, the various de­partments, which were paying their wages, would have possessed the right to make the groups un­animously Catholic, just as it is the inherent right of every private employer to maintain any kind of unanimity he chooses.

It is not only the right but the duty of an employer to set up and maintain an harmonious organiza­tion. A part of the basis on which an employee is selected is his ability to fit into an organization. And who should be the judge? The employer.

Bowing to Pressure

The antidiscrimination or anti-choice laws were enacted in the various states without the vote or consent of the citizens. The law­makers gave in to the campaigns of pressure groups. This brazen injustice is threaded with an irony that seems to have gone al­most unnoticed by the public, as well as by most of its victims. Political employers openly dis­criminate on a wholesale scale by giving out almost all of the avail­able government jobs to members of their own political party.

For instance, it is estimated that Presidents Kennedy and Johnson gave to Democrats more than 99 per cent of the appoint­ments which they made to key posts in the federal government, thereby discriminating against the color of the political badge the Republicans were wearing. Who would deny the presidents a free hand in choosing their aides? No one, perhaps, except those who would deny a private em­ployer a free hand in selecting his helpers.

In the scheme of government affairs, the government official, unfortunately, has been given the right to fill the jobs in his depart­ment with the faithful of his political party, almost without re­gard to merit. Without question, the private employer should be free to fill the jobs for which he is paying the wages and salaries with the workers he feels will serve him best, and he must select them on merit if his organization is to prosper and grow, or even survive.

These laws against free choice in employment not only fail to create jobs, but inevitably they cause unemployment. Quite natu­rally, employers are reluctant to take on employees when they can­not freely choose them. Instead, they make out with fewer em­ployees.

There are at present several million unemployed white men and women in the United States. An unknown but sizable number of them are unemployed because po­tential employers were forbidden to assign jobs to them. There were applications for those jobs from members of the minority groups, and in order not to “dis­criminate” against them, the em­ployers were forced to discrimi­nate instead against applicants of their own choosing and send them off to join the growing ranks of the unemployed.

Thus, a law, which its pro­ponents claim bars discrimina­tion, creates discrimination in every case it enters. It forces the shifting of jobs among applicants, and in so doing stirs up dissatis­faction and intensifies prejudice.

Clearly, such a law cannot create employment.

Presumed Guilty

Among the provisions of these antichoice laws, the one which most flagrantly violates our tradi­tion of freedom and fair play is that which holds the defendant employer guilty until he proves himself innocent. When an em­ployer fails to employ a minority-group member in a particular case, or consistently fails to em­ploy members of that group, even though in his judgment these ap­plicants do not qualify for the jobs that are open, the commis­sion against discrimination may find him guilty and force him to give jobs to the complaining ap­plicants with back pay.

More than that, section 297 of the New York statute states that “the commission shall not be bound by the strict rules of evi­dence prevailing in the courts of law or equity.” Thus we are all equal before the law unless we are employers. However, regardless of its individual provisions, the in­tent of the whole law flagrantly violates our cherished tradition of freedom of choice.

If there are two or more appli­cants for a job, the employer is the only one who is qualified to make the selection, and he is the only one who has the right to make it, whatever his reasons; and because he is the owner of the job in the first place, no commis­sion has any moral or ethical right to demand that he justify his choice. The responsibility for the success of an organization rests on the shoulders of management; consequently management must retain the full authority that goes with that responsibility.

Every casting director in the theater emphasizes that he needs to audition a number of applicants for every part in a play in order to select the one he feels is right for the part. Every employer is a casting director. Only he is qualified to decide which applicant is right for any place he may have open. Only one person is needed to fill the job. It will be filled either by one of the employer’s choice or by one who is moved into it by an antichoice or FEPC law. In The American Way of Life, which should it be?

The trend of this antichoice legislation could be extended by only a few degrees to apply to the individual’s choice of his doctor, his lawyer, or his architect. A member of one of these profes­sions retained by the individual is no less his employee, during the time he is serving, than any other employee.

It should be crystal clear to anyone who will analyze this subject that there is no such thing as forbidding discrimination by law. The so-called FEPC laws can only forbid freedom of choice.

It has been advocated by some writers and politicians that the employers of this country give a certain percentage or certain num­ber of their available jobs to Ne­groes and other ethnic groups. Overlooked is the fact that this idea could be carried out only by disemploying the same percentage or same number of white men and women.

Job Opportunities

On a visit to any of the large department stores in New York City today one will see Puerto Rican and Negro women installed as sales women in almost every department and in clerical posi­tions in the offices. The same num­ber of white women who would have occupied those posts are now displaced persons. In effect, they were kept out of those jobs be­cause of the color of their skin, or the lack of it.

If an accurate census could be taken of the number of the mi­nority-group members who are now holding jobs that were not given to them voluntarily, it would show the number of white men and women who are now unem­ployed because of the antichoice or FEPC laws.

There are a number of meas­ures the government could take or abandon that would stimulate business activity and consequently create jobs. They are being ex­pounded constantly by outstand­ing businessmen and economists, but one certain way that jobs can­not be created is by turning away one group of people to make way for other groups. This maneuver reduces efficiency and creates fric­tion, and it does not bring one single net addition to the nation’s total employment.

Civil Rights

Political, religious, and civic leaders have recently attempted to include private jobs in their demands for civil rights for mi­nority groups. By no stretch of the definition of the word civil could it be made to mean a per­emptory right to a private job.

Both white people and Negroes may vote in the same elections, use the same transportation and other public facilities, and go to the same schools and churches. Such use and attendance by one group does not preclude the use and attendance by the other group; but a white man and a Negro cannot hold the same job at the same time. More than that, no one has a civil right to a pri­vate job.

New York City’s religious leaders recently were urged to join in boycotts and use other means of coercion to force “equal em­ployment opportunities” for Ne­groes and Latin Americans. They were petitioned specifically to bring their collective pressure on the management of The Amer­icana Hotel, where their confer­ence on religion and race was be­ing held, to start drawing up a timetable for the opening up of supervisory positions for Negroes and Latin Americans.

The management of The Amer­icana might well have replied to these leaders, “If we give the jobs to the people of your choos­ing, we shall be compelled to dis­charge or reject the same number of people of our own choosing. Commendable as your motives may be, you cannot gain an altruistic end through coercion.” Some people who have not examined these conditions closely have asked, “If we do not have laws against discrimination in employment, where will those peo­ple of the minorities find jobs?”

Before this question can be an­swered, another must be asked, “If we have laws that force the transfer of jobs to the minority groups, where will the displaced persons find jobs?”

And perhaps the final question should be: “If there is a law against discrimination, would that law also serve to punish white em­ployees who work exclusively for white employers, or Negro employ­ees willing to work only for white employers, or Chinese employees in an all-Chinese restaurant or laundry?”




In a materialistic society which denies the existence and authority of God, the appeal for human brotherhood is a curious contradiction in terms. The battle cry of the French Revolution for “liberty, equality, and fraternity” was thus shrewd but none the less deliberate demagoguery on the part of its socialist leaders. The slogan was calculated merely to capitalize upon the misery of the poor and set them apart as “a class” against the hated “Aristocracy.”

In the ensuing terror of the class warfare which these revo­lutionary leaders generated, “Liberty, Equality, and Frater­nity” were conspicuous by their complete absence.