On Dec. 18, Ford Motor Company agreed to pay $10.5 million to settle two suits based on gender, race and age discrimination. The automaker was accused of unfair bias in giving older, white male employees lower grades, raises and rates of promotion than young women and minorities.

Two weeks ago, Smith College coach Jim Babyak was awarded $1.65 million for being fired in 1997 so that the college could hire a woman instead.

The "men's movement" considers these payouts to be victories ... but they are not. They reassert two of the most destructive assumptions underlying "diversity" programs such as affirmative action: First, that government has a right to determine the employment practices of private companies; second, that a marketplace in which people trade without restriction is inherently unfair and hinders diversity.

I think the opposite is true. Consider the following account.

In 1733, the French philosopher Voltaire published Letters Concerning the English Nation. He hoped to explain how the extreme religious diversity of England — where Protestant, Catholic, Jew, and Muslim interacted with good will — existed so harmoniously when religious differences in France had caused war.

Voltaire denied the argument that the law had created social harmony in the midst of religious diversity. After all, the Anglican Church enjoyed many legal privileges and its favored status would naturally create resentment, not good will. Certainly that is what occurred in poverty- and violence-ridden France. Yet England brimmed with an air of cooperation and prosperity.

What other factor accounted for the difference?

England was then known as a "nation of shopkeepers." In Letter Six, Voltaire wrote of the London Stock Exchange in which "the Jew, the Mahometan, and the Christian deal with one another as if they were of the same religion, and reserve the name of infidel for those who go bankrupt." After "leaving these peaceable and free assemblies, some go to the synagogue, others in search of a drink." In the end, Voltaire declared, "all are satisfied."

Commerce, the free market, established an arena within which diverse people eagerly traded with each other to mutual benefit and, then, peacefully walked away from each other when the benefit had ended.

This was the secret of English harmony and prosperity: the ability of all to associate economically as legal equals and the freedom to not associate — the freedom to walk away.

Today, the government dictates the terms on which labor can be traded in the workplace — the terms of employment — and denies to people the right to not associate on the grounds that non-association constitutes discrimination. Government violates the two prerequisites for social harmony.

In some cases, non-association may well reflect an irrational bias such as racism or sexism. An employer's natural impulse is to hire the best available employee and, thus, make more money. In some cases, this inclination may take second place to his dislike of Hispanics or women. If so, what should be done?

In 1957, Gary Becker's pivotal book The Economics of Discrimination provided persuasive evidence that employers who used "unfair bias" generated less income. The implications of Becker's work have been expanded by many analysts, including the black economist Thomas Sowell. He argues passionately that government's intervention "on behalf" of blacks has bitterly impoverished them. One of the most elegant aspects of the free market is that it tends to "correct" unwise economic policies.

These corrections can be hurried along by public censure, peer pressure, strikes, boycotts, and the myriad of other non-violent strategies used by the '60s civil rights movement. The most powerful tool is education because changing a person's mind cures discrimination without creating a backlash. People properly resent a law that tells them who they must associate with and on what terms.

This is precisely what should not be done in the case of unfair bias. There shouldn't be a law.

As a woman, I hope that other people view me as a human being they would like to employ. But if I wish to claim the right to turn down a job for any reason I see fit, then I have to respect the corresponding right of an employer not to hire me for any reason he sees fit. We both appeal to the same principle: we bargain with what is ours and respect each other's right to say "no."

If the men's movement believes that the recent Ford and Smith College payoffs constitute progress, they are mistaken. The courts are perpetuating the same pattern that caused conflict in the first place: that is, the "right" of government to determine the terms on which private parties associate. It was wrong when it benefited women. It is wrong when it benefits men.

Government should get out of the diversity business. Employers should determine their own employment practices and be left to pay the high economic cost of discrimination.

Personally, I hope employers who discriminate on the basis of anything but merit go bankrupt. I am willing to picket and write articles to hurry that process along. But I am not willing to use the law to pry open their doors of business. Destroying the right of non-association sets too dangerous a precedent. It means I may someday have to invite those employers into my own home or business. And I value highly the right not to associate with bigots.

McElroy is the editor of Ifeminists.com. She also edited Freedom, Feminism, and the State (Independent Institute, 1999) and Sexual Correctness: The Gender Feminist Attack on Women(McFarland, 1996). She lives with her husband in Canada.

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