The recent Rand Paul coverage has focused on his rather startling suggestion that private businesses ought to have the right to deny service to customers because of their race.  That was certainly an important part of the Civil Rights Act and an important issue for the civil rights movement, and it’s surprising to find a likely U.S. senator in 2010 who questions what everyone thought was a settled matter.   Paul has claimed he would have marched with Martin Luther King, Jr. if he had the opportunity, but one of the central things King marched for was an end to this kind of discrimination.  In fact, King was arrested and sentenced to four months in jail after a sit in at an Atlanta restaurant that denied service to African-Americans.  (King was released after intervention by John F. and Robert Kennedy).

It will hurt your head if you try to figure out how Paul could have marched alongside King even as he, Paul, defended the right of restaurant owners to bar King from their establishments, with the backing of the police.  (I guess Paul would have marched with King only to the restaurant’s door, parting company when it came time to actually sit in?)  So it’s only fitting that Rachel Maddow, Chris Matthews and others have focused on this piece of the story.  However, there’s more to discuss.  As Jim Moss and others have observed, someone who privileges property rights over human rights will have trouble backing lots of other government regulation of business that we take for granted in the 21st century. 

One point I haven’t seen explored in great detail, however, is the question of employment discrimination.  (I have seen a couple of mentions, but not much about this–on Hardball and Rachel Maddow tonight, discussion continued to focus on the lunch counter question).   Paul has claimed that he only disagrees with Title II of the Civil Rights Act of 1964, which prohibits discrimination by private business that are open to the public.  That’s the piece that put an end to segregated lunch counters, hotels, restaurants, etc.  Paul has suggested this is the only part of the Civil Rights Act that speaks to private entities, and Maddow and others seem to have accepted Paul’s incorrect recitation of what the Act covers: Maddow reports that "Paul’s particular beef with the Civil Rights Act of 1964 has to do with Title VII…"  But the 1964 law actually has another central provision that addresses private entities but has gone largely unremarked on by the media: Title VII, which prohibits employment discrimination by private employers with 15 or more employees.  If Paul thinks government has no right telling private businesses they can’t refuse to serve African-American customers, he almost certainly also believes government has no right telling those businesses they can’t discriminate against employees based on their race.

That takes me to another overlooked point: everyone has focused on race discrimination.  Again, this is quite natural given the context for passage of the 1964 Act.  However, the law also prohibits discrimination based on sex and religion, among other individual characteristics.   So, does Paul reject the federal government’s authority to outlaw sexual harassment?  Does he believe private employers have the right to refuse to hire Jews?

These aren’t completely academic or historical questions.  There’s an employment discrimination bill pending before Congress right now–ENDA, which would prohibit employment discrimination based on sexual orientation or gender identity.   It’s quite possible that Paul, if elected to the Senate, would have the opportunity to vote on this legislation.  In the absence of federal law in this area, there is currently no prohibition in 29 states against firing someone from his or her job because of their sexual orientation (38 states for gender identity).  I practiced employment discrimination law for 10 years and used to get calls from people living in these states who were facing discrimination because they are gay or lesbian.  There’s not much they can do.  In most states, a private employer can fire a superbly qualified employee simply because they are gay, lesbian, bisexual, transgender–or straight, for that matter (though in practice that is less of a real world problem).

Rand Paul praises the centrality of property rights and such rights certainly receive protection in our system.  But do property rights trump all other rights?  What about the equally venerated right to work, a right Republicans cheer for, in theory, but a right that seems subject to exactly the same criticism Paul leveled at Title II of the Civil Rights Act.  Someone ought to ask Paul: should private employers have the right to discharge employees simply because of their religion?  Can a private employer refuse to hire Jews, Seventh Day Adventists, or Muslims?  Should women who are told to choose between sleeping with their boss and losing their job have no legal recourse against their employer?  Does he support ENDA?  These are highly relevant questions, some involving legislation currently pending before Congress.  It would be nice to know what would-be Sen. Paul thinks.

Chris Edelson

Chris Edelson

Chris is a lawyer and professor at American University who writes frequently about current political and media issues. His writing has also been published in The Philadelphia Inquirer, Metroland (Albany, NY), and at