What’s wrong with an employer saying to an employee (who needs the job, has bills to pay and kids to feed): “If you want to keep your job, you’d better let me fuck you”?
Rather like the wrongness of slavery, this strikes me as being one of those cases where my confidence that it is wrong outstrips my confidence in any of the explanations about why it is wrong, but, contemplating the case, I experience no great sense of puzzlement about its wrongness. But then, I’m not a libertarian.
I came across philosophical reflection on the issue at the Bleeding Heart Libertarians site after following a link from a Corey Robin posting on employers who insist that their workers piss themselves rather than take toilet breaks . This instance of private tyranny elicited a comment at Corey’s site from one of the “Bleeding-Heart Libertarian” crowd, Jessica Flanigan, deploring trade unions . An odd reaction to the case, you might think. Flanigan had herself written on workplace coercion at BHL , and, in the course of her discussion, commended Japa Pallikkathayil’s excellent paper on coercion at The Philosophers’ Imprint .
In that paper, Pallikkathayil writes:
Consider a case of sexual harassment. Let us suppose that the employer says to the employee, “I will fire you if and only if you refuse to have sex with me.” This announcement affects the employee’s options in a way that is inescapable. So on the veto conception of constraint, this announcement constrains the employee’s options. In order to determine whether this constraint is impermissible, the impaired normative authority account begins by asking whether the employer may permissibly fire the employee. … The employer may have institutional or contractual obligations to fire the employee only on certain grounds. If this is not one of those grounds, it would be impermissible to fire the employee in this case and the impaired normative authority account can use this to explain how the employer necessarily denies the employee a moral veto and hence impermissibly constrains the employee’s options.
OK, so here’s hoping we’re somewhere where employers can’t fire at will….. But she continues:
Let us suppose that there are no such institutional or contractual obligations in this case. There are two further grounds one might potentially appeal to in order to establish that it is impermissible to fire the employee. First, notice that acting on the employer’s conditional intention involves paying for sex. On some views, that might be impermissible. Second, notice that it may be very intuitive to think of the sexual harassment case as involving an abrupt and radical change in job descriptions. Instead of simply being, say, a secretary the employee must now also act as a prostitute. Perhaps there is something morally objectionable about employment contracts that involve the possibility of this kind of abrupt and radical change.
In the event that neither of these grounds kicks in,
in the absence of any such explanation, the impaired normative authority account is indeed committed to the conclusion that the employer does not impermissibly constrain the employee’s options and hence that the announcement is not wrong or responsibility mitigating in the way that the mugger’s announcement [your money or your life!] is. But if all of the above considerations for thinking that it would be wrong for the employer to act on the conditional intention are ruled out, this does not seem to me to be an implausible assessment of the case.
Right, got that. Either buying and selling sex is always wrong (and ought to be prohibited?) OR the wrong here is a bit like your employer hiring you to write advertising copy and then suddenly declaring that he expects you to take the mail to the post office too.
Now I’ve no idea whether Pallikkathayil is a libertarian. The charitable reading is that she’s an honest philosopher who has produced an account of the wrongness of coercion who is worried and embarrassed at a putative counterexample. Fair enough. We philosophers are used to worrying cases where some theory we espouse seems to lead to the conclusion that slavery, incest or cannibalism are OK. That’s part of the way philosophical argument goes. It doesn’t commit us in the world.
Flanigan, though a philosopher, is also a paid-up libertarian, so, I think a fairer target. Here’s her reaction at BHL to the case:
My intuition is that something like (b) [abrubt change in job description] makes sexual harassment wrong. In these extreme cases employees do have the authority to decline certain tasks that employers demand. In this case the employee may say ‘you lead me to believe that the job did not require prostitution, so I have been deceived.’ Because it is wrong to deceive people, it is wrong to radically change a person’s job description, and so threatening to fire someone for refusing to comply with an impermissible demand is also impermissible.
Naturally, I’m relieved to discover that Flanigan does think that “fuck me or get fired” is wrong. But the explanation which her libertarianism pushes her to – “sex wasn’t in the contract” – still strikes me as bizarre. Lots of things which we are expected to do in our jobs aren’t explicitly in the contract. Indeed, no employee-employer relationship could function on the basis of strict adherence to contractual terms, which is why “work to rule” is often an effective tactic. And there are lots of jobs where women know, as they agree to work, that there’s a high probability of being asked to have sex by an abusive supervisor or employer. So what about those cases where the employees knew, perhaps it was common knowledge, that this was a hazard of the job?
This is hardly just hypothethical. A recent Human Rights Watch report states that
Hundreds of thousands of immigrant farmworker women and girls in the United States face a high risk of sexual violence and sexual harassment in their workplaces because US authorities and employers fail to protect them adequately, [the report] describes rape, stalking, unwanted touching, exhibitionism, or vulgar and obscene language by supervisors, employers, and others in positions of power. Most farmworkers interviewed said they had experienced such treatment or knew others who had. And most said they had not reported these or other workplace abuses, fearing reprisals. Those who had filed sexual harassment claims or reported sexual assault to the police had done so with the encouragement and assistance of survivor advocates or attorneys in the face of difficult challenges.
The issue seems to me to be emblematic of what’s wrong with the BHL people. They can’t and don’t take seriously the realities of private power, of domination, and of the need for someone (the state or the unions or both) to step in and protect people who have nothing against those who believe they are entitled to do what they want on their private domain. In an unequal world, where access to employment is in the hands of the few, then it is certain that at least some of the few will take advantage of their position to abuse and humiliate their subordinates in various ways, including sexually. Now the BHLs may cry “wait, wait, we’ve got that covered … social minimum, basic income, …” Whatever. They haven’t. Even in a world with a social minimum there will be people who get themselves into situations of neediness or dependence through bad choices or bad luck. People who owe more than they can pay, who need that job, people who aren’t in a position to say “no”. Providing people with protection against getting fired for arbitrary reasons isn’t an unwarranted interference with freedom of contract, it is essential to protecting people from humiliating and degrading bargains, or agreeing to lengthy stretches of unpaid overtime, or any of the other things that unequal power can force upon them.
I mentioned Corey Robin at the outset of this post. I didn’t get to read Corey’s book until way after it came out, so missed writing on the controversy surrounding it at the time. It is a great book, and a superbly written one at that. One of the things that comes out most clearly in it as a defining feature of conservatism, is the enduring sense of entitlement of those with property to do what they like with what is theirs, and their ressentiment towards employees who get above their station and become less than compliant with their master’s will, a ressentiment that extends to forces like trade unions and states that enact labour-protection laws. Corey’s focus on this feature of reaction brings out the otherwise mysterious deep affinity between traditional conservatives and libertarians. Why do libertarians with their race-blindness, tolerance of sexual diversity and easy-going attitude to hallucinogens consistently line up at the polls with old-style reaction? It is because of this: because of a sense of the right of private power to do what it likes on and with its property. All of which brings me to Marx and to that withering analysis of the reality of the private power to which “libertarians” are blind
This sphere …, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.
On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the “Free-trader Vulgaris” with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but — a hiding.