The Workplace Market and Hobby Lobby

By Kris Dunn

Aug. 31, 2014

Americans love their constitutionally protected freedoms and rights. Free speech, the right to bear arms, the right to assemble, freedom of religion. We love to talk about these freedoms as Americans, and they make the United States a special place to live.

There’s just one little problem with our love of these rights: We think that they grant us protection against people who disagree with us, especially in the workplace.

They don’t.

While those with differing opinions generally can’t take away your rights provided by the Constitution, there’s another American tradition that can punish those who exercise their individual freedoms in any workplace setting: the free market. 

Constitutionally granted freedoms are on my mind because of the U.S. Supreme Court’s ruling on retail chain Hobby Lobby, where justices stated in a 5-4 decision that closely held companies (defined as five or fewer individuals holding 50 percent or more ownership in a company) don’t have to abide by Affordable Care Act provisions that mandate coverage of certain types of contraceptives.

The blowback from both the far right and far left was immediate. The far right noted it as a win for religious freedom. The far left decried it as a denial of rights granted by law (in this case the ACA) and a slippery slope.

Me? I say honor the decision and let the free market decide what happens to Hobby Lobby. The market never lies about what’s most important to the people it serves.

Let’s take a moment and explore the impact of market forceson both individuals and companies exercising their constitutionally granted rights to various forms of freedom. 

Individuals are always at risk in an at-will employment setting. While employment law shelters employees from certain forms of discrimination, there’s really nothing that prevents a company from firing you for exercising your other constitutional rights, including free speech.

Free speech that’s inflammatory in nature and makes other employees uncomfortable presents any organization with an issue it has to address. Do you leave the opinionated employee in his or her seat or move to terminate that person?

The answer is based on the free market, which in this case is your employee base that’s aware of the questionable free speech. Is the employee base so appalled by the worker’s free speech that it pressures your management team to remove the employee?

This type of pressure happens every day in the U.S. workplace. It’s the market deciding what’s appropriate and what isn’t. The market always trumps individual freedoms if the pressure is significant enough.

The free market also decides how companies will be treated for decisions they make. Consider the case of Donald Sterling of the NBA’s Los Angeles Clippers.

Sterling had a long history of questionable business practices. He then was caught on tape making inflammatory comments on race. It was free speech.

But the league took one hard look at the overwhelming negative response internally and externally and moved to pull his ownership of the team.

The market — defined as your employee base or your customer base — has a great way of telling you what’s too much. As managers, we measure the response and make appropriate decisions.

Which brings me back to Hobby Lobby. The Supreme Court granted the company the ability to make its own decisions related to what contraception is covered based on the religious beliefs of a few owners. 

The Hobby Lobby decision is all about the rights of a closely held company to make its own decisions — in this case, decisions based on religious beliefs.

What will the market say in response to Hobby Lobby? Will employee turnover increase? Will customers stop shopping there or flock to locations in record numbers? Will job candidates start asking questions about the religious beliefs of the owners?

The market will tell us. And other companies will plot their course based on what they see.

As for the slippery slope created by the Hobby Lobby decision, there’s a lot of focus regarding other decisions closely held companies could make based on the religious beliefs of the owners.  

But the market never lies. When it yawns, it’s telling you the issue in question doesn’t matter to most people. When the camera crews show up or employees start marching out your door, it provides a wake-up call.

Listen to the market; it will tell you which way to go.

Kris Dunn, the chief human resources officer at Kinetix, is a Workforce contributing editor.

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