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Tuesday, September 27, 2005

Thoughts on Employment and a Non-Gun-Ownership Requirement

Another day, another workplace killing. Things aren't getting any better, are they?

Here's a question, perhaps a suggestion: Should companies, as a condition of employment, start requiring workers to sign an agreement of non-gun-ownership? This would require an employee to state that she does not own any guns, and that she will not purchase any guns during her employment. It seems that if an employer required an employee to agree to non-gun-ownership, the likelihood of a workplace killing by that employee would be lessened.

Such a change wouldn't altogther end workplace killings. There's the possibility that the employee would lie on her application, or would simply acquire a gun after being fired and use it to attack her workplace. On the other hand, it is all but certain that there is some population of unstable, disgruntled employees who own guns, and that for some of those employees, their easy access to currently-owned guns is an important enabling factor that facilitates a decision to transfer their anger into actual killing of their co-workers.

Would a requirement of non-gun-ownership be legal or enforceable? I'm not sure. (Do we have any employment law people here?) A while ago, Eugene Volokh blogged about a court upholding a ban on gun ownership by public housing residents -- apparently that kind of restriction on gun ownership is allowed. On the other hand, there is (at least in one state) a self-defense exception to the at-will employment doctrine.

If this kind of provision is legal, then perhaps it is something employers (and their insurers) should start looking into. Is anyone aware of employers who currently have such a policy?

Posted by Kaimi Wenger on September 27, 2005 at 01:16 AM in Current Affairs, Deliberation and voices, Kaimi Wenger | Permalink


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I don't know if such a law would be legal or not. But, it strikes me that it would be quite unpleasent. To my mind one's work should have as little control over what one does outside of work as possible. Obviously all sorts of things one does outside of work can have an effect on company profits, right down to the food one eats. Partly my worry is of a slipperty-slope kind and partly its that I just can't see how this is justified unless you think that most poeple should not have guns at all. I no longer own a gun, though I did for a number of years when I lived in Idaho. I liked target shooting quite a bit. I'm certain I would have (and do) think it would be none of my work's god-damed business if I owned a gun and went shooting in my spare time, any more than if I liked to eat steaks or drinks some beer in my off hours. In general to allow companies to dictate what their employees do on their time off just seems more than a bit too close to the company town idea to me.

Posted by: Matt | Sep 27, 2005 1:30:53 AM

Yep, employers should be able to require from their employees any damn thing they want. For example, no union membership. No synagogue attendance. No abortions. And, of course, no expectation of minimum wage. Would that work for you too, or do you only support employer-sponsored erosion of rights that are favored by right-wingers?

Posted by: Kate Litvak | Sep 27, 2005 3:08:29 AM


Isn't it possible to draw a principled lines between different rule applications?

To push your slippery slope argument in the opposite direction, are _you_ saying that employers should be able to require _nothing_ from their employees? After all, if you'd really like me to defend an overdrawn slippery slope application in one direction, then the least you can do is return the favor by defending an overdrawn slippery slope in the other direction.

Alternatively, we could act like reasonable people and recognize that there are principled ways to distinguish between different applications of a rule.

Posted by: Kaimi | Sep 27, 2005 3:47:48 AM

I wouldn't go so far as Ms. Litvak, but yes, employers should be able to regulate any employee conduct rationally related to the employee's job performance. A few things that come to mind:
* a diet and exercise regime, since being fat leads to lost productivity (and it certainly kills hundreds of thousands more people than firearms)
* wearing a helmet when riding a bicycle
* mandatory seat-belt use
* no staying out past midnight (dangerous drivers on the road)
* no smoking
* no children
* no unprotected sex

There are other requirements, to be sure, but that list is a good start. Certainly one's dignity and autonomy aren't violated when an employer requires the employee to lose weight - at least no more so than denying someone the means to defend himself or herself. Indeed, where as preventing someone from keeping a gun might help or harm (no accidental shootings, but also, no ability to defend oneself) someone, requiring the person to lose weight can only help the person. Maybe we can lobby for the enactment of the Put Down the Guns and Donuts Act?

Posted by: Mike | Sep 27, 2005 3:52:06 AM

recognize that there are principled ways to distinguish between different applications of a rule.

Of course. Why should an employer be able to, say, prevent its employees from not owning guns, but not be able to prevent its employees from engaging in other dangerous and self-destructive activities (e.g., overeating)? Or do your "different application" allow an employer to regulate its employees' diets? I'm not being snarky, by the way. I'm really interested in seeing your a) rule and b) its application to various situations.

Posted by: Mike | Sep 27, 2005 3:55:03 AM

Kaimi: I am waiting to hear more about "principled ways to distinguish."

I'll explain why libertarians of my sort don't need to distinguish anything -- but first, I want to enjoy your attempt to explain a coherence of a worldview where government should intervene in most employment contracts, except the ones that violate constitutional rights favored by right-wingers...

Posted by: Kate Litvak | Sep 27, 2005 4:14:13 AM

I don't get the logic.

First, you point to a single news article and conclude "things aren't getting any better." You have no numbers.

Second, a signed piece of paper isn't going to stop these people. There is a difference between law-abiding people and non-law-abiding people. Getting all of your employees to sign that agreement will only affect the former group, not the latter.

Finally, consider the idea that the problem is not "guns at work" but "guns in the hands of crazy people, when everybody else is unarmed." These rampages wouldn't get far if there were even a few armed, law-abiding employees present.

Posted by: anon | Sep 27, 2005 8:01:35 AM

Stunning. Why don't you just make them sign a piece of paper stating that they promise not to murder their co-workers? It would be about as effective as the no-gun-ownership compact and indisputably legal. Of course, only a law professor completely disconnected with human contact would believe that either proposal could have any impact on workplace killings. People who kill others are deranged, or at the very least, poorly socialized. These types of people, who commit murder over comparatively petty things such as insults or firings, would not honor a promise to not own a gun, not to kill people, or not to steal other people's food out of the lunchroom refrigerator. These types of people do not care. They do not think ahead. They do not consider the impact of their actions. If a lifetime in prison will not deter them from finding a gun and killing people, whether they owned it beforehand or not, then your little slip of paper will not deter them either.

Posted by: Cecilius | Sep 27, 2005 8:08:36 AM

By all means let us pass another statute that makes us all feel like we are "doing something" about this scourge--or is it merely an insignificant blip on the crime statistics screen?--of workplace violence. Add it to the thousands-long list of other similar laws already on the books at both the state and federal level. Then we can ignore it, like all the others, and congratulate ourselves on our enlightened goodness and perspicacity. Next, we pass another law allowing employers to ask whether we ever got so angry we thought about doing violence to one of our fellow citizens, you know, after being cut off on the exit ramp, or having our car keyed in the garage while shopping at the mall. We wouldn't want to employ such ticking time bombs, would we? Next we pass a law that makes it illegal for bloviating idiots to post absurdly stupid entries in internet blogs--but wait, that would have applied to Ms. Wenger's dingbat suggestion! Let's get to our legislators post haste with the bill! And onward to the perfect socilist utopia.

Posted by: Stephen Dugas, Esq. | Sep 27, 2005 8:25:53 AM

I don't really have any thoughts about whether such a rule would be legal. But it strikes me that it would be unenforceable, and therefore meaningless.

Some companies prohibit workers from smoking on or off the job. That's a pretty rational choice insofar as insurance rates rise for smokers. Since companies pay some percentage of insurance premiums, it is sensible for them to want to lower costs. (Query whether a company could prohibit employees from eating foods that are likely to make them obese. To the extent insurance premiums hinge on weight (and I'm not sure they do), that would also be rational.)

But the main difference between smoking bans and gun bans is that smoking bans are at least somewhat enforceable. After you smoke, your breath and clothes usually smell. If you smoke a lot, you might get caught. You MIGHT be able to get away with it, but there is also a deterrent since you may get caught.

But how in heaven's name is an employer ever going to find out whether you own a gun? Presumably, you don't show it off at the company picnic. In fact, you probably don't bring it to work until just about the time you are set to go on your psychotic rampage.

So who cares whether it is legal or not?

Posted by: Hillel Levin | Sep 27, 2005 9:41:40 AM

Check out Hansen v. America Online, Inc., 96 P.3d 950 (Utah 2004). In that case, the Supreme Court of Utah affirmed a trial court's grant of summary judgment against plaintiffs who asserted a wrongful discharge claim against their employer after it terminated them for possessing firearms in their cars in the company parking lot. The court found that two public policies were in conflict: the employees' right to keep and bear arms and the employer's right to control its property. On the facts of the case (guns in the parking lot), the court found that the public policy in favor of permitting gun possession was not so clear in these circumstances to overcome the at-will rule. Nevertheless, the court expressly refused to "announce a categorical rule defining the limits beyond which an employer could not restrict an employee's right to keep and bear arms." In other words, the court left for another day whether an employee would have a wrongful discharge claim against an employer who terminated her for keeping and bearing a firearm in her home.

Posted by: laborlawblog | Sep 27, 2005 10:14:49 AM

There's the possibility that the employee would lie on her application

Surely not! Employees, particularly those who are likely to commit murder with all the penalties that entails, would never lie about anything.

Posted by: Niels Jackson | Sep 27, 2005 10:34:28 AM

I'm "employment law people," in Kaimi's words. This all is state law, and I can't swear that, say, Wyoming doesn't have an "employee gun rights" doctrine.... But I can say confidently that there generally is no employee right to own guns that would prevent a firing for gun ownership. You can be fired for any reason under the employment-at-will rule.

Kate's example of firing someone for synagogue attendance is instructive in this way: most con law and employment law thinkers, even conservative ones, recognize that protection of minority rights (religious, ethnic, racial, or other minority) is a defensible exception to employment at will (because otherwise, the minority could be systematically excluded from labor markets, which troubles everyone but Richard Epstein). So the analogy between firing for religion and firing for gun ownership doesn't get us very far.

The only claims I could think of for an employee fired for gun ownership:

(1) A public employee asserting a Second Amendment right -- but the last time I looked at the Second Amendment annotations in the U.S. code, few or no courts found the Second Amendment to create an individual right to own a gun; virtually all courts see the Second Amendment as a federalism-based guarantee of state right to organize an armed militia or guard. (I think a federal district judge in Texas recently ruled differently, but that's a rare exception.)

(2) Montana is the sole state that has eliminated the employment-at-will rule. Its "wrongful discharge" act requires cause for termination, and (especially in a sparsely populated western state where gun ownership is more respectable than, say, in Brooklyn) Montana courts might not see gun ownership as cause for termination.

Posted by: Scott Moss | Sep 27, 2005 10:37:14 AM

Wow, wait 'till David Kopel sees this! :-)

Seriously, though... I don't see any legal problems, but the practical problems seem totally insurmountable. As everyone else has pointed out, enforcing this agreement would be difficult to impossible. Moreover, if workplace shootings are triggered by employee's perceptions of unjust firings, do you really want to fire someone for breaking the no-gun contract?!

Posted by: Paul Gowder | Sep 27, 2005 10:46:54 AM

One more note: Kate wrote, “libertarians of my sort don't need to distinguish anything.” That’s true only if you oppose every single government intervention -- but Kate regularly makes distinctions between acceptable and unacceptable regulation.

For example, in responding to Dave Hoffman’s advocacy for regulations granting preferences for New Orleans lawyers, Kate replied, “Dave: give me an example of a single market where governmentally-restricted supply of goods or services (for reasons that have nothing whatsoever to do with the quality of such goods or services) benefits consumers.” While I disagreed with Kate there, hers was a principled distinction -- regulations that relate to quality and those that don’t (such as a protectionist regulation favoring locals). Heck, as long as a libertarian supports the idea of having a U.S. military, s/he has to distinguish that from the many other spending programs s/he would criticize.

In short, Kate does her own libertarian philosophty a disservice by claiming here that it never requires her to “distinguish anything”; libertarian thinking is a lot more nuanced than that. We all draw lines between “regulations that makes sense” and “regulations that go too far or are unjustified”; libertarians just draw the line in a different place than others do.

Posted by: Scott Moss | Sep 27, 2005 11:03:08 AM

New York has a statute that says an employer can't discriminate based on "an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property." (McKinney's Labor Law Sec. 201-d(2)(c).) Owning and using guns might be considered a "legal recreational activity." Or perhaps a court might fashion a "public policy" exception to the at-will rule, as it sounds like the Utah court was considering in Hansen v. AOL. But in general, the at-will rule would allow it.

I'm intrigued by the Kaimi-Kate debate. Kate, would you allow discrimination based on race or sex? How about firing someone because they served on a jury? However, I do think Kaimi needs to answer the abortion counterexample. What if employers do not want employees who, in their view, have killed a child?

Posted by: Matt Bodie | Sep 27, 2005 11:31:17 AM

Scott: incidentally, I never said I supported governmentally-imposed restrictions on output aka regulation of quality. Or that I even found such "quality"-based distinctions coherent. I just didn't want to start debating in that particular thread whether such regulations are good, since Dave provided us with a lower-hanging fruit.

My list of exceptions is indeed non-empty, but very very short, and therefore easy to keep coherent.

Posted by: Kate Litvak | Sep 27, 2005 11:33:39 AM

Right, Matt -- in fact, as a lawyer I had cases under N.Y. Labor Law 201's off-duty recreational conduct act, so I really should've remembered that one offhand. Good thing I'm not taking an issue-spotter test in my own Employment Law class right now!

Though the case law on that statute is sparse, I think NY courts have construed "recreational activities" relatively narrowly (for example, courts have found that "dating" doesn't count), so it might distinguish mere gun ownership (unprotected) from gun-related activities (e.g., going to a shooting range while of duty, or perhaps even just being a member of a gun club). I think that narrow interpretation is supported by the text of the law, which specifically specifically stresses the words "activity" and "activities," even giving a list, "...including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material."

Posted by: Scott Moss | Sep 27, 2005 11:46:02 AM

I'm another employment law person, and I second what Scott Moss has said. Much of this is state law, so it's hard to make sweeping generalizations, but refusing to hire employees that owned guns would likely be legal, with a few possible exceptions. Yeah, there are a few states that have laws that on the books that say something like "employers can't fire employees for engaging in legal activity outside the workplace," but there are very few cases decided under these laws. Montana does have a (weak) just cause requirement. And maybe a court would find that firing for gun ownership would violate "public policy," but that would be stretching that doctrine well beyond where most courts have been willing to go. None of this goes to whether such a ban would be a good or bad idea, of course. But in at least most places, I would guess it would be legal.

As to the employer's interest in employee health, I've always been amused that in this hard-core at-will country, a good number of states have laws prohibiting employers from discriminating on the basis of tobacco use -- no doubt passed because of that long, ugly national history of employment discrimination against smokers. The ADA limits some kinds of medical inquiries and generally bars employers from firing employees because of certain medical conditions not related to the employee's ability to do the job.

Beyond those and some other concerns already mentioned, employers can fire at-will employees for a whole slew of dumb and/or personally intrusive reasons. That's why some folks think the U.S. should adopt what the rest of the industrialized world has: just cause discharge rules that protect everyone. Of course the libertarian answer to that is that such rules interfere with employer property rights and/or rationale employers who only fire folks for good reasons will prevail in the marketplace, but I'm not convinced.

Posted by: Joseph Slater | Sep 27, 2005 11:54:52 AM


The test for "government should intervene in most employment contracts, except the ones that violate constitutional rights favored by right-wingers" is really quite simple, actually. First, the court finds a right-winger. Then, the court asks the right-winger which rights she favors. Finally, those rights receive no protection. It's as simple as 1, 2, 3. Really, I'm surprised that someone as smart as you is asking about mundane details like this.

Posted by: Kaimi | Sep 27, 2005 12:02:56 PM

First of all, the incident that Prof. Wenger is discussing is not a "workplace killing" except in the Pickwickian sense. Read the story. This was an evil and reprehensible act, but none of the three victims died. The shooter wounded three and then committed suicide.

Second, "things aren't getting any better"? Actually, criminal gun violence has declined dramatically since the early 1990s all across the country, though it remains quite high in some areas, including Chicago and Washington, DC, both of which prohibit the lawful possession of handguns.

Fourth, before drawing draconian conclusions from on one tragic incident, have you asked yourself whether there might also have been a brutal workplace stabbing, or malicious hit-and-run, somewhere in this nation of 290 million people during the month of September?

Fifth, if we are to base conclusions on anecdotal evidence, one might argue with equal strength that this incident illustrates why New York needs to get out of the dark ages and adopt a shall-issue concealed carry law, as more than two-thirds of American states have done. The sort of employer bullying that Prof. Wenger is "maybe suggesting" is probably going to do a lousy job of deterring liars and sociopaths -- he himself admits the virtual impossibility of policing it -- but it just might succeed in deterring a law-abiding, trained, permit-holding concealed carrier like me. If I had been there, I hope I would have tried to stop the shooter and protect my co-workers. Not if my carry gun's hidden at home, though. In short, this seems likely to be counterproductive even by the high standards of anti-gun measures generally.

Finally, has Prof. Wenger engaged in any analysis of the likely social costs and benefits of the sort of "yellow dog" contract he is contemplating? (I think that's a fair term to describe the use of economic leverage to chill exercise of a constitutionally protected right.) Is he familiar with the data showing that the proportion of "hot burglaries" (home invasions, the most dangerous kind of burglary) is dramatically lower in America than in other industrialized nations? Kopel and others have persuasively argued that this is a positive externality, a benefit, of Americans' widespread possession of private arms. Burglars don't want to get shot; in America, they very well might.

If we are to swap anecdotes here, swaggering thugs walked right into the posh London flat of one of my friends, a very wealthy banker. He ran to the bedroom and hid as they looted his place and rattled the bedroom door chain. (More generally, the current crime situation in the disarmed UK sounds, frankly, barbarous to me.) That this sort of wrongdoing is strongly deterred by an armed society suggests that even non-gun-owning, wealthy employers (and academics, and corporate lawyers) receive real benefits from the fact that America is an armed society.

Posted by: Plainsman | Sep 27, 2005 12:27:23 PM

Ah, my comment jumped from "Second" to "Fourth." I rearranged the paragraphs a few times in drafting the comment. Apologies.

Posted by: Plainsman | Sep 27, 2005 12:31:30 PM

Alternatively, Kate -- given the possibility that some pesky liberal or libertarian would object to the too-hasty dismissal of right-wing rights -- perhaps we should articulate a formula based on, say, the original post. Note: This is all very tricky and nuanced, so of course only good liberals will be able to comprehend it.

Such a framework would probably go along these lines:

First, we should note the general rule that employers may regulate many employee actions. If I'm an employer, and I want to refuse to employ people who eat chocolate -- well, that's within my rights. And frankly, I think most good libertarians would argue that this is entirely appropriate. My workplace, my money, my paychecks. If I don't want a chocolate eater to make widgets for me, I can insert a clause into the employment contract of my employees. And if they flaunt this, and eat chocolate, I am within my rights to terminate them.

(Are we in agreement so far? Or are you the kind of libertarian who favors adding limitations to an employer's ability to enter into private employment contracts?)

So we probably can agree on the general ability of private parties to enter into employment contracts. But we still haven't answered the question of whether such a non-gun-ownership provision would be a good, or a legal, idea. That question takes us to a twofold inquiry. First, would this kind of contractual provision be legal? Second, is there a valid reason for this kind of provision?

We'll start with the question of whether there is a reason for such a restriction. As set out in the original post, the harm sought to be avoided here is workplace shootings. Workplace shootings can only happen when an employee has access to a gun. (I think we can take judicial notice of the fact that without a gun, it's impossible to have a workplace shooting). Thus, gun ownership generates what we laypeople sometimes call a negative externality. My gun ownership affects not only me; it also imposes a harm on others; namely, an increased likelihood that I will show up at work some day and shoot all my co-workers.

While opinions differ over how the law should deal with acts that generate negative externalities, it is not completely beyond the pale to suggest that it may be appropriate to regulate (through government and/or private action) at least some acts that generate negative externalities. (Also, it's entirely possible to make an empirical counter-argument that the beneficial effects of gun ownership outweigh the negative externalities. Plainsman has suggested as much. Such arguments would bear on whether this kind of regulation is likely to be a good idea).

The second question is whether such a provision would be legal. I'll defer mostly to our employment law experts around here, who seem to think this kind of provision would indeed be legal. In that sense, it differs from many of your hyperbolic examples. The Civil Rights Act of 1964, after all, prohibits employment discrimination on the basis of religion. Various labor law regulations regulate an employer's ability to interfere with unionization. And so forth.

And to anticipate the obvious counterargument, let's mention the possibiltiy of legal rights to gun ownership. Is there a legal right to gun ownership, which would negate this idea? I don't believe that the law presently protects any general legal right to home gun ownership. At the least, it's very much open to debate whether the Second Amendment secures an individual right. State laws may differ on this issue, and it's entirely possible (as our employment law people have suggested) that some state law provision would make this plan unworkable in some jurisdictions.

So, our nuanced liberal would probably conclude that this provision might be permissible, based on (1) the general ability of employers to set conditions of employment, subject to legal contraints; (2) the real benefits that might come from such a provision; and (3) the lack of a legal prohibition of such a provision.

The rest of us, however, will be happy to simply skip all of that blatherscythe and, as you've suggested, go straight to a rule that "rights of right-wingers" are automatically subject to removal.

Posted by: Kaimi | Sep 27, 2005 12:51:08 PM

Kaimi: the challenge to you wasn’t to justify an employer’s ability to impose any job requirements that can have reasonable justification or “externalities,” but to provide some coherent story for why employers should be able to do so *only* for causes you like.

E.g., hiring young women may impose extra costs on employers because of pregnancy risks – an employer may spend substantial resources training me in a variety of firm-specific skills, and I will then leave to take care of a kid. So, just like my gun ownership can be seen as an “externality,” so is my gender. To take your line almost verbatim, my gender affects not only me; it also imposes a harm on others; namely, higher costs on employers and likely consumers and other employees. Likewise, my ethnicity affects not only me; it also imposes harm on others; namely, higher costs because of the risks of alienating customers, other employees, and suppliers. Union membership is surely an “externality” too because it imposes costs on employers, customers, and non-union employees who aren’t allowed to compete freely.

Ditto for Jews, women who had abortions, people who are registered to vote, homosexuals, veterans, and so forth – any of these characteristics may impose extra costs if they alienate customers, other employees, or communities where businesses are located.

Telling me why employers should be given a card blanche in choosing any job requirements is easy; reconciling this view with the general liberal position that restricts the freedom of contract in the employment context is tough. Mere dropping of the word "externalities" doesn't do it.

Posted by: Kate Litvak | Sep 27, 2005 1:48:33 PM

Kate: I'll jump in, in defense of Kami... some harms are more severe than others. Us liberals do recognize that when the harm to the employer's interest gets high enough, our tinkering with the employer's freedom of contract has to stop. Thus, when we insist that the employer accommodate a disabled person, we allow that this accommodation be limited to the "reasonable" and non-burdensome. Similarly, we permit employers to outright fire disabled people if it's a "direct threat" to keep them. We permit employers to discriminate on the basis of sex if it's a "bona fide occupational qualification" (e.g. stripper).

In each of these cases, we permit employees to "impose extra costs if they alientate customers, other employees" etc. But we draw the line at a certain point and say if the cost is too high, the employer is free to step in.

It's perfectly consistent to draw a similar line with regard to guns; since the cost to the employer from a maniac who kills people is very high indeed, a lower probability of harm in the case of any one gun-owner might still hold a net risk high enough to permit the employer to "discriminate."

Posted by: Paul Gowder | Sep 27, 2005 2:22:06 PM

Paul: I bet the "pregnancy and childcare costs" of female employees are much much much higher than the costs from a fantastically rare legal gun owner who ends up shooting people at his office. If pure costs can drive the distinction between permissible and impermissible job requirements, then, employers should be allowed to fire women, older people, people from "undesirable" ethnic/racial groups, and union members.

Posted by: Kate Litvak | Sep 27, 2005 2:32:34 PM

With the caveat that I know that what I'm about to say, even if it's entirely true, does not counter the main point that Kate L. is making ... Her example that women "cost more" because they are more likely to leave a job to have kids repeats an oft-made but suspect claim. It's not really good evidence that women as a group do cost more. Sure, more women than men leave jobs to take care of kids for extended periods of time/permanently. But significant evidence also shows that men in general leave jobs in general about as often as women do (notably, men leaves jobs for other jobs more often than women do). Again, I'm not quibbling with Kate's point that certain types of folks can impose externalities on an employer -- she's clearly right but maybe her example unintentionally shows the type of stereotypes Title VII was designed to combat. Oh, and I could quibble with her union example, but that would take us too far afield.

The underlying question here, I think, remains whether we want to have just cause rules like most of the rest of the world. If not, we're stuck with the American problem of trying to distinguish between dumb, frivolous, and/or mean-spirited reasons to fire people that ARE legal, and dumb, frivolous, and/or mean-spirited reasons to fire people that are NOT legal. And frankly, this area of the law is pretty messy.

Posted by: Joseph Slater | Sep 27, 2005 2:38:48 PM

Kate: (a) that's a difficult empirical question that neither of us is in a position to answer, and (b) there's a possible moral case for the claim that the harm from losing money in training a pregnant employee is not comparable to the harm from having someone shot and killed. Kip Viscusi's work aside, loss of human life by murder might well count as an infinite, or near-infinte cost, permitting even a calculation appropriately discounted for the increas in the otherwise "fantastically rare" risk that gun ownership provides. (I have neither the time right now nor the progress in my big L&E project to refute the whole notion of a "hedonic value of life," but suffice it to say that I'm working on it.)

Posted by: Paul Gowder | Sep 27, 2005 2:44:23 PM

Which still leaves open the question of whether it would actually deter anything we want to deter -- let alone provide enough deterrence to overcome the very considerable harms that I and others have tried to suggest.

The issue is corporations bludgeoning law-abiding citizens into disarming themselves even away from the workplace. (I would like to see Prof. Wenger or Mr. Gowder explain their hostility to the private possession of arms to some of the women of my acquaintance who live alone, some in bad neighborhoods. They are to repel a 220-pound knife-armed rapist how, exactly? Cayenne pepper and "self defense" moves? Well, no doubt the police will take care of everything, as we saw in New Orleans recently.)

Prof. Wenger hasn't yet pointed us toward statistics, data, or counterarguments that might suggest his idea is a good one. The trends in crime rates do not support him; the effects of state concealed-carry laws do not support him; the effects of anti-gun measures in the jurisdictions that enact them do not support him. He has simply pointed us to one tragic example of a "workplace killing," which actually wasn't one. Can Mr. Gowder improve on this? If not, will you both consider the possibility that what is in play here is an atavistic prejudice against armed citizens, quite as lame as the ones against unpopular religious or ethnic groups?

Look at the amount of distortion that your hostility to arms ownership is introducing into your own ostensibly liberal politics. Corporations controlling what their employees can and cannot own after hours in the privacy of their homes! If not for the blind spot induced by hostility to firearms, I doubt you would countenance such measures for a second. Especially since we're dealing with a liberty specifically singled out for protection by the Constitution of the United States here. In short, Prof. Litvak appears to me to have you dead to rights with her point about special pleading.

(We could digress and talk about the academic interpretive dispute over whether the Second Amendment of the U.S. Constitution secures a "right of the people to keep and bear arms," U.S. Const. amend. ii, but I will just say that if Prof. Wenger really thinks the Second doesn't specify an individual right with adequate clarity, then surely, by parity of reasoning, any notion that the First Amendment's Establishment Clause might secure an enforceable individual right must be discarded, and Everson, Lee v. Weisman, etc., are ripe for overruling. Compared to the Second, the text of the Establishment Clause would seem a no-brainer for this approach.)

Personally, I support unions, minimum wage laws, and a public policy exception to the employment-at-will rule for lawful gun ownership and self-defense generally.

It is fair to acknowledge that the harm Prof. Wenger's idea would cause would be limited in practice by the strong negative publicity it would produce in most parts of the country. ("It's none of BigCo's damn business what I do in my home!"). I would certainly join a complete consumer boycott of any firm that tried it. State legislative action would likely follow. At most you'd see some implementation in anti-gun parts of the country where few of the employees are likely to own firearms anyway. I can imagine a San Francisco law firm adopting such measures.

In those places, yes, Prof. Wenger's advice might have some effect. The young paralegal, the working mother in the copy room, might knuckle under and allow their personal choices about political freedom and self-defense to be dictated by their employer, in exchange for a paycheck. In this way, the proposed measure would help to ensure that law-abiding, well socialized, working adults in those parts of the country remain entirely disarmed in the face of those who wish to rob, rape, exploit or kill them.

I'm sorry for the sharp tone, but this is one of the worst ideas to be mooted in the blogosphere in a long time -- not just bad public policy, but callous, out-of-touch bad public policy.

Posted by: Plainsman | Sep 27, 2005 4:33:13 PM

I don't understand why someone in support of the gun prohibition won't a) clearly state his or her rule and b) apply that rule to other situations. Instead, I'm reading:
A: "Gun prohibitions are okay since employers suffer high costs because of guns."
B: "Exactly. I think employers should be able to fire pregnant employees, since pregnancy is costly to employers."
A: "Hold on. That's different."
B: "Why?"
A: "The costs are different."
B: "What are those costs? How can we measure them?"
A: "Well, that's a tough empirical question."
B" "Of course, if the empirical question is so tough, why are so many people ready to outlaw guns! Where goeth the agnosticism?"

Thus far, this is the analytical method I've seen:
Step 1. Identify bad rights.
Step 2. State a rule that gets rid of bad rights.
Step 3. When pressed for a specific application of that rule to good rights, use vague terms to ensure that an inconsistency cannot be established, or just say, "That's different."

I hope that I simply missed it where the rule that would apply to bad rights (guns) was applied to good rights (pregnancy, freedom from gender- and race-based discrimination, etc.) Perhaps someone would point out the specific comment where I missed that?

Posted by: Mike | Sep 27, 2005 5:06:12 PM

I just want to comment on a narrow point. Several commenters have suggested that perhaps the 2d Amendment would prohibit employees from contracting not to own guns. The argument hasn't been fleshed out by anybody (unless I missed it; I confess that I skimmed some of the comments), so maybe there is some support for that view. But generally, the rights guaranteed by the Bill of Rights (e.g., freedom of speech, freedom from unreasonable search & seizure, etc.) apply against the government, not against private actors. Thus, if your private employer requires you to refrain from endorsing certain viewpoints at work, that would not violate the first amendment; likewise, if your private employer searches your desk, that's not a fourth amendment violation. Employers are prohibited from discriminating based on religion, but that's based on federal statutes, not on the first amendment.

Thus, if the 2d amendment argument gets us anywhere on the question whether employers may contract with employees not to own guns, it only does so with respect to government employers.

OK, I lied - I have two more comments: First, I think this post is interesting in that most posters who seem to be conservative are taking the anti-freedom of contract view, while most of the liberal posters are taking the pro-freedom of contract view. And while some of the conservative posters have pointed out that the liberals are contradicting thier generally anti-freedom of contract views in the employment context, I haven't seen any self-aware posts from conservatives recognizing that they too are contradicting the typical libertarian/conservative view of the employment relationship.

Second, my personal opinion is that (1) it is probably permissible for employers to contract with employees for the employees not to possess guns, but (2) it seems very unlikely to have any positive effect, unless there is some enforcement mechanism, which Wenger has yet to discuss (again, unless I missed it in a post that I skimmed). Why on earth would we think that a person willing to walk into an office and open fire would respect a provision in his employment contract barring him or her from owning a gun (if they even noticed it in the contract). I think many non-criminals would feel perfectly justified in ignoring such a provision (and the visceral reaction of many of the previous posters to the mere suggestion of such a contract provision reinforces this point). If I owned a gun, I would probably be tempted to ignore the provision too. So it seems to me there needs to be an enforcement mechanism, and I haven't read any discussion of what form that might take.

Posted by: Sam | Sep 27, 2005 5:13:12 PM

A few general comments...

1. I don't actually agree with Kami's proposal: I think the practical enforcement problems are insurmountable. I leapt to his defense only because Kate's criticisms are terribly unfair. She appears to suggest that any time a liberal permits an employer to impose anything by contract on an employee, it's overweening hypocrisy. The world is not so black-and-white.

2. We're at a historical stage with guns where private gun ownership may be bad. Lets look at the cost/benefit of private ownership of guns at the time of the revolution versus today.

+ Can fight off oppressive government
+ Can be used to resist criminals
+ Aren't very effective at killing large numbers of people quickly. (Muskets and all...)

- Can not be used to fight off oppressive government (government has TANKS and BOMBERS now)
- Can be used to kill quite a lot of innocent people very quickly (Uzi...)
= Still can be used to resist criminals, but serious criminals have more incentive to become better-skilled and armed than citizens and non-serious criminals can be stoped with less lethal measures (pepper spray etc.).

The world has changed, folks...

Posted by: Paul Gowder | Sep 27, 2005 5:21:33 PM


I hope that I simply missed it where the rule that would apply to bad rights (guns) was applied to good rights (pregnancy, freedom from gender- and race-based discrimination, etc.) Perhaps someone would point out the specific comment where I missed that?

Mike: Here's a difference, at least as a positive matter. Employers are prohibited by federal statute from discriminating on the grounds you mention (pregnancy, gender, and race). To my knowledge, there is no federal statute prohibiting employers from discriminating on the basis of whether a person owns a gun. As mentioned in my previous post, I don't believe the 2d Amendment prohibits private employers from discriminating on that basis - rather, it protects against state action.

I know this doesn't address the normative question you pose (whether it's desireable to discriminate on the basis of gun ownership, but not on the basis of pregnancy, gender, or race), but as a matter of positive law, I think discrimination on the basis of gun ownership is probably permissible (unless there is an applicable federal or state statute I'm not aware of).

Posted by: Sam | Sep 27, 2005 5:22:36 PM

Kaimi stated "Workplace shootings can only happen when an employee has access to a gun.... Thus, gun ownership generates what we laypeople sometimes call a negative externality."

While this is true, it's ultimately a fallacious argument that is being used to support gun control laws, not address the actual issue; violence in the workplace. I am quite confident that guns are a statistically insigificant part of this problem and equally confident that far more employee to employee deaths are caused by unarmed violence. (This doesn't count the rapes perpetrated by one employee on another or other forms of violence that don't result in death.)

It is indisputable that employees have "gotten even" outside of the place of employment by running other employees down in cars, attacking them in public and even in their own homes.

All else aside, people really hate having their employers telling them what to do on their own time. It is quite likely (I'd say guaranteed, but want to sound like this is really a debate) that the very act of creating such a rule would result in gun violence.

Posted by: Joe | Sep 27, 2005 5:43:58 PM

With regards to distinguishing this from policies against hiring based on race, pregnancy, and so forth:

As some commenters have already pointed out, we're not writing on a blank slate here. There are a number of laws already on the books, prohibiting discimination on the basis of pregnancy, race, sex, age, and so forth. Whether or not each of those are independently good ideas is a debate that is far beyond the discussion of this post. Suffice it to say that society has, through its agents, expressed a belief that protection against employment discrimination ought to be granted to certain classes of people. Absent a specific carve-out, employers are generally able to make decisions as they will. (The whole employment at will doctrine).

Society has chosen to protect race, sex, pregnancy, age, and other categories, by law. Society has not chosen to give the same protections to other distinguishable categories. I can refuse to hire people who golf. Or, for that matter, refuse to hire people who don't golf. I can refuse to hire Dylan fans or Beatles fans or country music fans. The difference between my inability to make hiring decisions based on race, and my complete ability to make hiring decisions based on musical taste, derives from the different status under the law of each of those groups. One is protected; the other is not.

Posted by: Kaimi | Sep 27, 2005 5:56:15 PM

(1) A public employee asserting a Second Amendment right -- but the last time I looked at the Second Amendment annotations in the U.S. code, few or no courts found the Second Amendment to create an individual right to own a gun; virtually all courts see the Second Amendment as a federalism-based guarantee of state right to organize an armed militia or guard. (I think a federal district judge in Texas recently ruled differently, but that's a rare exception.)If you had claimed that "few or no federal courts" had found that the Second Amendment recognized an individual right, I wouldn't argue the point. However, state supreme courts have been recognizing that the Second Amendment protects an individual right to keep and bear arms for most of our history. Often, they have not recognized it as a limitation on state action, but only on federal action. See State v. Newsom (N.C. 1844) as one example. (They did uphold the statute, of course, because it only disarmed free blacks--the target of gun control advocates today.)

Nunn v. State (Ga. 1846) struck down a state law for violating the Second Amendment. State v. Chandler (La. 1850), while upholding a ban on concealed carry, acknowledged that the Second Amendment protected the right to open carry.

There are many other examples, some as late as the 1950s, such as State v. Nickerson (Mont. 1952). You can find a comprehensive list of such decisions here. You could also read my book For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Praeger, 1994) for a detailed narrative of what happened, and why.

In any case, this whole proposal collapses on the core problem, well articulated by Cesare Beccaria in 1764: Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity--and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. [Cesare Beccaria, trans. by Henry Palolucci, On Crimes And Punishments (New York: Bobbs-Merrill Co., 1963), 87-88.]Does anyone seriously think that a person prepared to commit murder is going to let a little matter like an employment contract stop him from owning a gun--or for that matter, stop him from acquiring a gun if his employer fired him? Get real.

Posted by: Clayton E. Cramer | Sep 27, 2005 6:44:05 PM

Kaimi: in other words, you are unable to come up with a coherent explanation for why certain restrictions on the freedom of contract are appropriate while others aren’t. All you’ve said so far is “things are the way they are because that’s the way they are.”

At least you are not trying to pretend there is logic behind it.

Posted by: Kate Litvak | Sep 27, 2005 7:07:58 PM


Um, I'm not trying to "come up with" a coherent explanation for antidiscrimination laws because that's already been done. Everyone except for Richard Epstein (and apparently, you) is pretty much on board with the idea of antidiscrimination laws that require hiring decisions to be made without regard to race, pregnancy, et al. There are a number of book-length discussions of the topic.

Why don't you ask me to resolve the Hart-Fuller debate, while you're at it, or to come up with a definitive answer to "rules versus standards"?

Posted by: Kaimi | Sep 27, 2005 7:18:45 PM

I don't think anyone asked anyone to provide The Theory of Antidiscrimination Law. Rather, the question was simply: What principled basis is there for allowing an employer to limit costs associated with some (but not all) of its employees' private choices? Allowing employees to own guns is costly, so to is allowing employees to have babies. Where is the principled distinction, we asked? Your answer was: Anti-discrimination laws ipso facto make the distinction principled.

The problem with your method is that it does not leave us with any tools to debate whether and when anti-discrimination laws should be expanded or contracted. Something is right or wrong, principled or unprincipled, based on postive law. But postive law, unlike gravity, is something humans can change. You've left us with no means to discuss change. Under your method, in order for us to determine whether some restriction is proper/principled or not, we'll have to wait for Congress or the states to enact an anti-discrimination law.

Posted by: Mike | Sep 27, 2005 8:01:53 PM

Kaimi: let's just keep with one theme, shall we? My first comment in this thread was simple: would you advocate allowing employers to interfere with constitutional rights of employees if those were the kind of rights that you politically support? Like abortion rights? Rights to unionize? Rights to vote?

You first claimed that we shouldn't worry about the slippery slope because you could easily distinguish the rights that should be protected from employer fiat, and that such distinction will be based on something better than pure politics.

So, I asked you again to tell us what those distinctions are. You then backed off, saying that you don't really need to provide conceptual distinctions because we already have the "what the law allows us" distinctions.

Now, I am asking one last time: do you or do you not have a coherent principle that would justify granting employers the ability to restrict some constitutional rights of employees, but not other rights? Like, the right to bear arms, but not the right of association, abortion, voting, and so forth.

I keep waiting for a coherent distinction that you promised a while ago, and you keep avoiding the issue. This time, under the rubric of "it's a big philosophical debate." Oh well.

By the way, it’s perfectly fine not to have such a coherent principle and just honestly say that you are being completely instrumental in seeking new ingenious ways to undermine the second amendment. Honestly, even cynical honesty, is good; the attempts to bullshit are annoying.

Posted by: Kate Litvak | Sep 27, 2005 9:39:10 PM

Not a legal question, but a policy one.

If gun owners as a group are so dangerous, is it really a good idea to call them into a room Monday morning and fire them all?

I'm just asking, that's all.

Posted by: Bemac | Sep 27, 2005 10:49:12 PM


Thanks for clarifying your position. I had read your prior comment, seeking "a coherent explanation for why certain restrictions on the freedom of contract are appropriate while others aren’t," as seeking some broader theory of, well, "why certain restrictions on the freedom of contract are appropriate while others aren’t." As long as your query is framed in that way, it looks like you are seeking The Theory of Antidiscrimination Law.

As to your revised question:

First, we see whether there is a law restricting the employer's right to interfere with or make hiring decisions based on the particular behavior or characteristic. These evidence a societal intent to protect against certain employer behavior. In general, such directives should be supported.

The answer to this question as it relates to race, pregnancy, and so forth is clear. The answer as it relates to gun ownership is less clear and turns on the secondary question of whether there is a constitutional right to have a gun in your house. There is, at the least, quite a bit of uncertainty on the answer to that question.

To the extent that one believes that the second amendment provides an individual right, then a non-gun-ownership rule could clearly run into problems. It may still be permissible, as I'll discuss below.

To the extent that one believes that the second amendment does not provide an individual right, then there is no problem with a non-gun-ownership rule. The decision to keep a gun at home is simply a non-protected lifestyle choice that, like golfing or listening to the Beatles, is perfectly within an employer's rights to control.

(You're not arguing that an employer should not be able to enter into contracts regulating non-protected behavior, are you?)

Even if home gun ownership is a constitutionally protected behavior, it could be regulated. Employers may regulate many different types of constitutionally protected behavior. I have a right to free speech that may allow me to wear a shirt that says "Fuck the Police," but I may not walk around the halls at Cravath yelling "Fuck the Police" at the top of my lungs. Cravath can also tell me that I am not to comment publicly on pending litigation, even if I'm not at work. In other words, Cravath may restrict my right to exercise free speech at home. (Are you opposed to this, Kate?)

And for that matter, Cravath can tell me that my right to bear arms ends at their doorway. This is hard to characterize as anything other than an employer's regulation and control of my second amendment rights. (Are you opposed to an employer prohibiting guns on its premises?)

There are many different potential rationales for restricting employees' constitutional rights. As for a rule of non-gun-ownership, it comes pretty clearly within the employer's interest in maintaining a safe workplace. The employer limitation on a constitutional right is the same as the justification for prohibiting yelling fire in the crowded theater. Or for that matter, exercising my free speech rights by calling in a false fire alarm.

So, to sum up: (1) non-gun-ownership hiring is not explicitly restricted by antidiscrimination law; (2) if gun ownership is not an individual right, then a non-gun-ownership clause presents no problems; (3) even if it is an individual right, it may be restricted due to safety concerns.

Now how about you, Kate? Where do you come down on a rule against commenting on pending litigation (including from home), and on a rule against guns on employer property? If you accept both of those, then you accept employer regulation of at least some off-site constitutional activity, as well as at least some employer regulation of second amendment rights. Why the heated opposition to the combination of these two?

Given your past comments, I'm sure you've got a simple solution. I await your theory.

Posted by: Kaimi | Sep 27, 2005 10:50:51 PM

Kaimi: thanks for your thoughts. None of this strikes me as terribly coherent, but I guess you are doing the best under the circumstances.

Your first prong (the one where we ask whether some employer-generated abuse of employee rights is permitted by law) is again not conceptual, but merely descriptive of existing law. That's the distinction from the series "it's the way it is because it's the way it is." The fact that the law doesn’t allow gender/age/race discrimination doesn’t make such restrictions fit any coherent system.

Your second proposed distinction is in fact conceptual, but too speculative to be taken seriously. Legal gun ownership is a very bad proxy for workplace violence. This country has a huge number of legal gun owners; the number of legal gun owners shooting people at work is miniscule. The statistical connection between gun ownership and workplace violence is basically nonexistent. It's not even close to the risk generated by the "fire" scream. The employer could have just as well prohibit employees from owning i-pods.

Meanwhile, there are lots of much better proxies for one’s proclivity to engage in workplace violence -- for example, gender. Age. Cultural background. Overall ethnic/racial composition of the workforce. Certain psychological/psychiatric quirks. I bet DNA can soon be used as a good predictor. If maintaining a safe workplace is a sufficient reason to interfere with employees' constitutional rights, then, employers should be able to stop hiring young males from low socio-economic backgrounds (regardless of current educational status and achievements of those males), or screen people for DNA, or promptly fire anyone who engages in divisive/provocative activities, like union organizing.

My own theory is that every contract, with the exception of contracts to perform a criminal activity (very very narrowly defined), should be enforced.

Which means that every employer should be able to demand anything he wants – including sexual favors, conversion to Islam, and abstaining from voting. And I should be able to tell him to take a hike if I want to keep my gun, my dog, and my Planned Parenthood membership.

Posted by: Kate Litvak | Sep 28, 2005 9:35:19 AM

Again, I know this isn't responsive to Kate's main point, but again I think it's worth pointing out that one of her examples is false. In fact, union workplaces are, as a generalization, safer than their non-union equivalents. That's one of the positive effects of contract "negotiations" when both sides to a contract actually have effective bargaining power.

Posted by: Joseph Slater | Sep 28, 2005 9:52:45 AM

I think Kate is right that there is no "coherent" theory available, but that's mainly because she seems to define "coherent" as "an entirely objective account of what should be legal or illegal that entails no value judgments." I remember reading Bork's "The Tempting of America" when I was 16 and, for a few weeks, thinking, "Eureka! Yes, we should decide everything based on objective considerations rather than arbitary value judgments!"

That phase of mine didn't last long (I think I was over it by the time I turned 17), but even if the "demand for decisions based on objective non-value judgments" makes sense for undemocratic con law rulings by the Supreme Court (the Bork/Scalia argument), we're now talking about common law and statutory policies. Even Bork, in his book, notes the propriety of "legislating morality": "indeed, we legislate little else," he wrote (I'm going off memory here so I may have prepositions wrong or something).

Posted by: Scott Moss | Sep 28, 2005 11:10:01 AM

Joseph: if you know of a paper showing that union workplaces are safer *controlling for endogeneity*, please drop me a link. I am actually seriously interested. Most papers claiming positive impact of unions on productivity, employee happiness, and other such things fail the endogeneity test miserably – and are therefore junk.

Scott: when I finally turn 17, I might smarten up too.

Posted by: Kate Litvak | Sep 28, 2005 12:53:35 PM


I'm happy to share what I know with you, but before either of us wastes our time, why don't you send me an e-mail explaining why you think most of the stuff you've already encountered is "junk." joseph.slater@utnet.utoledo.edu

Posted by: Joseph Slater | Sep 28, 2005 2:04:17 PM

Whoops, I mistyped my own e-mail address. Make that joseph.slater@utoledo.edu

Posted by: Joseph Slater | Sep 28, 2005 2:32:34 PM

Kaimi said, "To the extent that one believes that the second amendment does not provide an individual right, then there is no problem with a non-gun-ownership rule. The decision to keep a gun at home is simply a non-protected lifestyle choice that, like golfing or listening to the Beatles, is perfectly within an employer's rights to control."

I think it's a jump to go all the way from "gun-owning is not an individual right protected by the 2nd Amendment" to "therefore it is the equivalent of liking the Beatles, just an inconsequential lifestyle choice." The fact that a right is not specifically enumerated in the Constitution has not stopped Courts from finding that it is nonetheless a fundamental right. A good argument could be (and has been) made that self-defense is a basic human right.

Posted by: Bench | Sep 28, 2005 5:49:16 PM

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