The Harvey Weinstein Effect: Eliminate Sexual Harassment Law

Stephen Kershnar

The Weinstein Effect and Sexual Harassment Law

Dunkirk-Fredonia Observer

December 21, 2017

            The Weinstein effect involves famous or powerful people being publicly accused of sexual misconduct. It began when several women accused movie producer Harvey Weinstein of sexual harassment, sexual assault, and rape. This effect is a good opportunity to consider whether sexual harassment law should be repealed.

  

            The Weinstein effect took down a number of public figures. Senator Al Franken and Representative John Conyers resigned over such charges and Roy Moore was not elected over it. Entertainers Louis CK, Richard Dreyfuss, Dustin Hoffman, Ryan Seacrest, Steven Seagal, and Kevin Spacey have been disgraced, fired, or isolated in response to allegations of sexual misconduct. Journalists Tom Ashbrook, Garrison Keillor, Matt Lauer, Charlie Rose, and Tavis Smiley were similarly treated.

No such effect followed the reasonably well-evidenced rape and sexual battery allegations against Bill Clinton. Apparently, some rapists are too big to fail.         

Sex harassment law comes from the ban on sex discrimination found in the Title VII of the Civil Rights Act of 1964. “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The law applies to private businesses, federal, state, and local governments, public and private colleges, and unions.

There are two types of sex harassment: quid pro quo harassment and hostile work environment. Quid pro quo harassment involves a boss asking an employee to trade sex for a job-related benefit such as getting hired, promoted, or a raise. A hostile work environment involves a boss or co-worker creating a work environment that a reasonable person would find intimidating, hostile, or abusive. An employer can be held liable for failing to prevent such an environment. Such an environment might come about in part from sexual comments, photos, dating requests, and so on.

Sexual harassment law is unnecessary. Rape, sexual battery (unconsented touching), and sexual threats are already crimes. Such acts can and do lead to recovery under civil law. A quid pro quo offer is a type of prostitution and therefore already illegal. There is an interesting question as to whether prostitution should be illegal, but in any case, criminal law currently prohibits it.

  

This leaves only the hostile-work-environment line of sex harassment law. Workplaces vary with the degree to which employers and employees welcome sexual comments, jokes, photos, requests for dates, dating, and sexual hookups. There is no one answer as to which, if any, of these activities should be permitted in a workplace. Rather, it should depend on the employers’ and employees’ preferences. The former own the premises and pay the bills. In addition, employers are subject to market discipline. If they have too strict or lax standards, they will not get the best employees or have to pay the best more to come to their firm or stay there. This is a big incentive to be reasonable.

It would also allow employees to decide what sort of workplace in which they work. Many employees would prefer not to have stifling political correctness in the workplace. This is particularly true given that, as American Enterprise Institute’s Christina Hoff Sommers points out, the rate of sexual harassment is dropping (from 6.1% women in workplace harassed per year in 2002 to 3.6% in 2014 – still far too high) and women hold more than half of managerial, professional, and related positions.

Given the Weinstein-effect mess, there is reason to wonder whether employers subject to market discipline would do a better job of policing themselves than the government does of policing them. If the Weinstein mess is far reaching, and this is not clear, we should wonder whether government policing of workplace etiquette works well for anyone: employers, employees, or women.

Not only would allowing employers to set their own standards allow people to find workplaces that fit their tastes, it would also avoid the lying, sneaking, and privacy invasions that accompany a blanket ban on dating and sex. On one estimate, one in six marriages began at work. How many of these marriages would have prevented under today’s workplace rules? At Fredonia State, for example, faculty from many departments married former students or colleagues (consider, for example, education, English, foreign language, history, and music). Workplaces that ban such relationships turn workers into liars and sneaks.

The ban on a hostile workplace makes rudeness illegal. The government makes a mess out of everything it touches and, predictably, has made a mess of enforcing workplace etiquette. Also, if the role of government is limited to protecting people’s moral rights and, perhaps, funding public goods, then the government has no business enforcing workplace etiquette.

Also, plenty of jobs involve conditions that a reasonable person would find intolerable. Consider, for example, the demands made by medical residencies, SEAL team training, and Wall Street law firms. The government does not have a general moral license to eliminate intolerable workplace conditions. 

As a legal matter, the ban on hostile work environment chills, if not prohibits, speech that should be protected by the First Amendment. Prudent worker are scared to ask someone out on a date, discuss sex with a friend at work, or socialize after work, despite the fact that such activities are protected under current law. It also discourages male-female mentoring and informal discussion of workplace strategy, both of which are important. Even the legal justification for the federal law, workplace discrimination affecting interstate commerce depends on a misreading of the Constitution. 

An objector might claim that sexual harassment is inefficient because it discourages women from joining the work force and, as a result, should be stamped out. This mistakenly assumes that employers don’t have a strong incentive to make their workplace hospitable to employees. Also, it’s an odd complaint coming for those who want to fund the army of pricey attorneys, diversity officers, and government bureaucrats to micro-manage workplace etiquette.