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 This effect is a good opportunity to consider whether sexual harassment law should be repealed.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. 

The DACA Sellout: The ruling class outdoes themselves

Stephen Kershnar

DACA Amnesty: Are you kidding me?

Dunkirk-Fredonia Observer

December 10, 2017

            The Democrats have made Deferred Action for Childhood Arrivals (DACA) amnesty their top priority in recent Congressional negotiation over the budget despite its being irrelevant to the budget. The Republican establishment also wants DACA. The political class states that DACA is merely temporary relief for educated-and-promising children and teens whose parents brought them here without their consent. It argues that DACA is compassionate because DACA children would do poorly if returned home and yet they are good for the American people. DACA is a disgrace and shocking display of the ruling class’ priorities.

            DACA began as Barack Obama’s proposal to allow some people who came illegally as minors to stay here for two years with the chance for renewed permission after that. The policy forgave people who were younger than 31 years old on June 15, 2012.  In 2014, Obama expanded and implemented the plan via executive action. It currently amnesties roughly 800,000 people and another 500,000 are eligible. More than half the states then sued. In September, Donald Trump canceled the policy, but delayed acting on the cancellation for six months to give Congress time to act. Had Trump not canceled the policy, the courts would done so because Obama’s executive action was clearly unconstitutional.

             DACA is a disgrace in part because it rests on a bed of lies. First, the amnesty for DACA would be massive and not given to just DACA children and teens. The Department of Homeland security found that while the average immigrant brought in (sponsored) three family members, the average Mexican immigrant sponsored six family members. Forbes reports that 78% of the DACA beneficiaries are Mexican. Assuming that, on average, an immigrant brings in six family members, then, the amnesty would bring in 4.8 million people.

Some context is helpful here. DACA is above and beyond the more than one million immigrants a year the U.S. admits. It is also above and beyond the 84 million immigrants and their U.S. born children (27%) of the population who are already here (Migration Policy Institute). The ruling class has been flooding the country with people from the third world. DACA is just a part of this.   

            Far too many DACA immigrants are neither children nor teens and many are shockingly uneducated. Writing for The Daily Signal, Hans Von Spakovsky notes that the majority of DACA beneficiaries are adults. He further notes that fewer than half of DACA beneficiaries have a high school education despite the fact that the majority are adults. The Center for Immigration Studies’ Steven Camarota found that, perhaps, 24% are functionally illiterate and another 46% have only basic English ability. Similarly, the Migration Policy Institute found that in 2014 only 5% of the DACA beneficiaries had a college degree.

            The DACA beneficiaries will not meet many of the advertised eligibility requirements. For example, von Spakovsky reports, the Obama administration regularly waived the DACA education requirement. If the future is anything like the past, the government will waive and eventually drop many of the eligibility requirements for DACA-based amnesty.

   

             The presidential sleaziness surrounding DACA is a wonder to behold. Obama’s executive amnesty was blatantly illegal. A president cannot unilaterally change immigration law. Obama attempted to do by claiming that the executive branch has prosecutorial discretion. Like so many of Obama’s legal claims, this is childish. No one thinks that president Trump could in effect eliminate the capital gains tax by using prosecutorial discretion to make it clear that people who don’t pay the tax get off scot-free. Trump’s voters took seriously his promise to return DACA invaders. If he goes back on his promise, he is just another lying politician. His voters will notice.  

Also, Trump and his voters know well that every successive amnesty encourages millions more to sneak in.    

            The people sneaking in and their family members will be costly to taxpayers. Writing for the Heritage Foundation, Robert Rector and Jason Richwine note that the U.S. government gives a lot of money to poor people. Using 2010 numbers, they note that on average, households headed by people without a high school diploma receive $35,000 more in benefits each year than they pay in taxes. They further note that half of illegal-alien households are headed by someone without a high school degree and 25% have only a high school degree.  

The Democrats’ prioritizing DACA is incredible. Surely, Democratic politicians can find a priority that focuses on U.S. citizens. The might, for example, focus on overpriced and disastrous public schools, the sea of incarcerated Americans, or shoring up unsustainable entitlement programs such as Medicare and Social Security. Why do Democratic voters let themselves be such a low priority?   

American voters oppose amnesty. They rose up in outrage over the attempt to sneak amnesty in through the back door during the Bush II administration and elected Trump in large part to prevent further amnesties. They don’t think the country’s problems can be fixed by flooding the U.S. with tens of millions of poor-and-uneducated third world immigrants, especially from Central America. Why is it so hard for the American people to get what they want, especially given that they are in the right?

Also, why does the country have to draft so many low quality immigrants when other countries (for example Canada) select high quality ones by drafting for skill, education, or money? As Ann Coulter points out, the New England Patriots drafts the best players it can get. Cornell University admits the best students it can get. The U.S. should pick new citizens similar to how the Patriots and Cornell choose. The country loses out when the country admits DACA beneficiaries rather than the best and brightest immigrants China, India, and Turkey have to offer. 

  

The DACA amnesty is based on lies. It rewards Obama’s law-breaking and Trump’s promise-breaking. It harms American people and they don’t want it. The ruling class really outdid themselves on this one.

Organ Transplantation: Should criminals and welfare recipients go to the back of the line?

Stephen Kershnar

Organ Transplantation: Who should go to the end of the line?

Dunkirk-Fredonia Observer

November 27, 2017

            The shortage of organs for transplantation results in some people having to be at the end of the line. For some organs, this will result in their dying for lack of an organ. In response, some people have discussed whether people who have destroyed their organs or have unhealthy lifestyles should get lower priority. They might have destroyed their organs via the use of alcohol, drugs, or cigarettes.

            Among the organs that are successfully transplanted are heart, intestine, kidney, liver, lungs, pancreas, and thymus. There are also transplanted tissues such as bones, corneas, heart valves, nerves, skin, tendons, and veins. A single donor can save eight lives, for example, by giving a heart, liver, pancreas, etc. The donors can be living or dead. On some accounts, they are alive if the donor is merely brain dead.  

            The Department of Health and Human Services reports that in 2016, 116,000 people were on the waiting list for an organ and the list is getting longer. Each year, 7,300 people die waiting for an organ (roughly 20 a day).

            The group that oversees organ distribution, United Network for Organ Sharing (UNOS), recommends that organ transplants be distributed based on who most needs the organ, who would most benefit from it, and who has been waiting the longest to receive it.  

            UNOS’ criteria are mistaken. First, by not allowing the donor or his family to sell or otherwise determine who gets the organ, the recommendation tramples on people’s property rights. The National Organ Transplant Act of 1984 made it illegal to for dying people or their families to sell human organs and bone marrow. Unsurprisingly, the act did not make it illegal for doctors to sell transplant-related services. Perhaps the congressional delegation that passed the act was brain dead.

   

            Second, by not solely focusing on who would benefit the most from receiving an organ, the criteria fail to be efficient. Such a focus would put people in the line based on the number and quality of years they would get from a new organ. Instead, the system favors fairness over people’s rights and doing the most good.   

            Philosophers John Harris and Benjamin Smart separately discuss whether those with unhealthy lifestyles should go to the end of the line. The fairness argument is that people who destroyed their organs have reduced the number of organs available to the public. As a result, they should go to the back of the line. In other words, because the unhealthy have lessened the public’s supply of organs, they should get lower priority when it comes to tapping into the supply.

One problem with this is that organs are not communal goods. It is not as if organs are like coal on government land that the government owns and may distribute as it sees fit. If the concern is about depletion of resources, then it is unclear why the penalty for depletion of resources should be limited to those who have depleted the supply of organs. Criminals and welfare recipients deplete people’s resources. It is unclear why they shouldn’t go to the end of the line because they depleted the pool of medical and other resources just as the unhealthy depleted the pool of organs. More than one in five Americans (and one in three New Yorkers) is on medical welfare (Medicaid and CHIP). The welfare recipients likely don’t pay their fair share of their children’s education costs or the cost of fire, military, and police protection, the cost of the roads, and so on. If people who deplete resources should go to the end of the line, then criminals and welfare recipients should join them.  

            A second problem with sending the unhealthy to the end of line is that harm is imposed by individuals, not groups. If we are going to put unhealthy individuals at the end of the line, we should allow them to buy their way out of it, perhaps by purchasing organs from the third world or, perhaps, merely paying for people’s transplant surgeries.   

If we are going to put groups, rather than individuals, at the end of the line for depleting the supply of transplant organs, we should also do so for groups who don’t give their fair share to the organ pool. In the U.S., Blacks are 29% of the transplant-organ waiting list, but donate only 16% of the organs (by deceased donors). Asians are 8% of the waiting list, but donate only 3% of organs. If we’re prioritizing people by how their group depletes resources, blacks and Asians should join the unhealthy, criminals, and welfare recipients at the back of the line.

Also, as philosopher Stephen Wilkinson points out, some people with unhealthy lifestyles sometimes benefit others by increasing the supply of transplant organs or increasing the overall amount of all medical resources. The former might include people who engage in dangerous sports (for example, motor sports) and whose organs are donated after an accident. The latter might include smokers. As a group, they save the government money by dying before they require expensive medical treatment that accompanies old age.

             If the pool of organs were increased by allowing people to sell them, there would be less of a need to prioritize people. The best way to do this is to create a market in organs. This would ensure that many more people would donate organs, especially families of people who died or who are brain-dead. This would also be more respectful because people own their organs and thus have a right to sell them just as people who own cars have a right to sell them.  

            Putting the unhealthy at the end of the line depends on there being a communal pool of organs. There’s no such pool. If there were, criminals, welfare recipients, and some minorities should join the unhealthy at the back of the line.