Let’s start from the market aspect and contractual aspect, and disregard existing law initially…
An employer creates jobs when he senses the market demands a value the potential job can provide. I think the answer lies between two poles:
1) The hyper-free market attitude would allow for an employer to create a job description in his contract as exclusive as he feels necessary. An employer would be free to make it so exclusive that NO ONE could fit the bill. In the hyper-free market, the employer can rightfully add on any conditions for employment, even unrelated to the specific task the job performs. Why? Because it is HIS business.
Now, the market would react, if his conditions are so stringent, by not supplying a single person to fill that job. The employer would then, wishing to capture the market share generated by the initial demand, be compelled to loosen the conditions of employment until a suitable labor pool of one or more individuals becomes available and willing.
At some point on that ‘loosening’ the employer may still have conditions of employment that *you* may find unfair, but the person inevitably hired may be completely content with. That’s the free market.
2) At the other end of this particular spectrum (and you could say it isn’t the farthest end of the spectrum, but for this discussion, it is far enough) you have a condition where employers ONLY list the qualities necessary to perform the bare mechanics of the job the employer needs filled.
This would inevitably require some sort of enforcement mechanism, because mere task qualifications ARE NOT ENOUGH, and every employer knows this. In a scenario in which Candidate 1 displays 90% proficiency at the necessary task, but is a grouch who scoffs at superiors and disdains criticism, and Candidate 2 displays only 65% proficiency at the necessary task, but is gregarious and eagerly pursues correction and edification, I guarantee the employer will hire Candidate 2.
But that’s unfair! Candidate 1 is better at the bare essentials of the job! Yet the employer knows that his objective in the marketplace is to provide the value the market demands, and value is more than just requested skills or products.
So, somewhere between those poles lies the answer. If an employer honestly feels that the value his company brings to the marketplace is enhanced by a janitor who genuflects perfectly and never misses a mass, then the market will either respond affirmatively and give him a janitor or negatively and he must reevaluate his analysis of the market.
But here is where we run into Kant’s Universal Principle, and we’ll switch the variable. If every employer says I only want WHITE janitors, then their portion of the market just created a condition in which black people have NO chance for employment in that field.
The hyper free market advocate would tell you, well then, a company would come along that is willing to hire black janitors and would inevitably sweep the market of the ‘exclusivists’. But not so, not for a long time. The market corrects problems, but slowly.
So here’s where I’m on the fence. Ethically, I think it is wrong for sellers to discriminate against buyers, while it is not ethically wrong for buyers to discriminate against sellers. So, where does employer-employee fit in that category? The employee is selling the service of their knowledge, personality and skills, and the employer is buying that service. So then, does the employer have the right do discriminate against the possible employee based on conditions that are not immediately relatable to the service?
I’m stuck then believing that it *may be* ETHICALLY wrong for buyers to discriminate sellers for any reason not immediately relatable to the product or service, however it would be LEGALLY impossible to enforce without creating even worse conditions for the marketplace. So, I think it’s one of those situations, where the Ethical thing to do, is to the let the market and its slow (but thorough and more effective) corrections, correct the problem.
I’m also wrestling with the inefficiency of Kant’s rule as it applies to marketplace interactions: in the instance of EVERY employer refusing to hire black janitors as a refutation of even one employer refusing to hire a janitor because he’s black, I just don’t see the market tolerating that for long.
Historically, LAWS had to be crafted to ENFORCE discrimination when the market rapidly proved that the flow of money in the reconstruction and post-reconstruction South was extremely UN-RACIST; not the other way around, where we think laws were necessary to enforce non-discrimination.