When Can an Organization Claim a Right of Expressive Non-Association?
What happens when anti-discrimination law comes into conflict with the right of expressive association? Where the association is a corporation devoted to making profits for shareholders, anti-discrimination law wins. Thus, a computer manufacturer could not refuse to hire women or religious Christians on the mere ground that the shareholders and employees do not want to associate with women or religious Christians. In the foregoing hypothetical example, of course, we are rightly dubious of any claim that the corporation is even engaged in any expressive association. Certainly, we cannot impute any expressive purpose to the diffuse shareholders of a publicly-traded corporation; it is a much safer assumption that they are simply seeking to maximize the return on their investment. Moreover, to the extent that a corporation’s discriminatory hiring policy excludes highly-qualified prospective employees, it probably harms shareholders. The leading right-to-expressive-association cases in the
