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dice or taste of his own. He may simply be transmitting the tastes of the community. He is, as it were, producing the services for the consumers that the consumers are willing to pay for. Nonetheless, he is harmed, and indeed may be the only one harmed appreciably, by a law which prohibits him from engaging in this activity, that is, prohibits him from pandering to the tastes of the community for having a white rather than a Negro clerk. The consumers, whose preferences the law is intended to curb, will be affected substantially only to the extent that the number of stores is limited and hence they must pay higher prices because one store has gone out of business. This analysis can be generalized. In a very large fraction of cases, employers are transmitting the preference of either their customers or their other employees when they adopt employment policies that treat factors irrelevant to technical physical productivity as relevant to employment. Indeed, employers typically have an incentive, as noted earlier, to try to find ways of getting around the preferences of their consumers or of their employees if such preferences impose higher costs upon them. |
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The proponents of FEPC argue that interference with the freedom of individuals to enter into contracts with one another with respect to employment is justified because the individual who refuses to hire a Negro instead of a white, when both are equally qualified in terms of physical productive capacity, is harming others, namely, the particular color or religious group whose employment opportunity is limited in the process. This argument involves a serious confusion between two very different kinds of harm. One kind is the positive harm that one individual does another by physical force, or by forcing him to enter into a contract without his consent. An obvious example is the man who hits another over the head with a blackjack. A less obvious example is stream pollution discussed in chapter ii. The second kind is the negative harm that occurs when two individuals are unable to find mutually acceptable contracts, as when I am unwilling to buy something that someone wants to sell me and therefore make him worse off than he would be if I bought the item. If the community at large has a preference for blues singers rather than for opera singers, they are certainly increasing the economic well-being |
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