EMPLOYERS OFTEN EXPRESS SUCH AN UNWARRANTED FEAR OF sexual harassment claims that they ignore the problem and hope that it will just go away and never happen in their workplace. This fear results from a lack of understanding of the nature of sexual harassment claims, confusion about the true meaning of untidy terms like “severe,” “hostile,” and “pervasive,” and ignorance of appropriate management steps to both prevent harassment in the workplace and provide for a legitimate defense to sexual harassment claims. This article
• examines the kinds of sexual harassment claims that arise under Title VII of the 1964 Civil Rights Act,1 as amended by the Civil Rights Act of 1991, the two key federal statutes used to combat sexual harassment in the workplace,
• expresses concern about the First Amendment free speech conflicts that arise in the context of harassment claims,
• discusses practical steps employers may take to reduce the likelihood of both sexual harassment in the workplace and their possible liability, and
• concludes with a philosophical and economic perspective on the issue based on property rights, free association, contract, and free speech.
Under section 102(a) of the 1991 Civil Rights Act,2 both punitive and compensatory damages and a jury trial are available to plaintiffs who win a sexual harassment suit. Title VII, administered by the EEOC, prior to the 1991 Act, only provided for recovery of back pay and restoration of job benefits. The amount that may be recovered under the 1991 Act depends on the size of the employer and ranges from $50,000 to $300,000.3 In addition, state court tort remedies are available for torts resulting from the harassing conduct such as battery, mental anguish, invasion of privacy, outrageous behavior, and wrongful discharge. Such recovery is governed by the law of the various states.
In applying current standards for sexual harassment cases, the courts are becoming more forceful in requiring employers to know about and effectively deal with harassment in the workplace. Employers are accountable for behavior they, “in the exercise of reasonable care,” should have known was occurring.4 Additionally, courts and the EEOC have imposed greater responsibility on management to develop plans to deal quickly and effectively with legitimate sexual harassment claims.5
Sexual harassment in the office means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:6
(a) Submission to such conduct is either explicitly or implicitly made a condition of an individual’s employment;7
(b) Submission to or rejection of such conduct by an individual is used as a basis for an employment decision effecting such individuals;8
(c) Such conduct has a purpose or effect of substantially interfering with an individual’s right to work in an environment free of intimidation, hostility, or threats stemming from acts or language of a sexual nature;9 and/or
(d) the conduct interferes with an employee’s ability to focus on the job responsibilities.10
The EEOC and some courts have found the following to comport with sexual harassment:
(a) Sexually suggestive or obscene comments, threats, insults, slurs, jokes about gender-based traits of a person, or sexual propositions;11
(b) Physical conduct such as intentional touching, pinching, brushing against another’s body, suggesting or coercing sexual intercourse, or physical assault;12
(c) Non-verbal behavior such as leering or staring at another’s body, displaying sexually suggestive photographs, cartoons, or magazines;13
(d) Continued expression of sexual or social interest in an individual after being informed that the interest is unwelcome;14
(e) Belief that an individual is required to consent to the foregoing behavior as a term or condition of her employment;15 and
(f) Employer responsibility for acts of non-employees such as customers or service technicians, when the employer knows, or should have known, of the unwelcome conduct and fails to take immediate or appropriate action.16
Determination of whether conduct amounts to sexual harassment is generally made on a case-by-case basis after looking at all the circumstances. It is apparent, however, that most definitions of sexual harassment turn on an abuse of power in a relationship of unequal power, for example, teacher and student, or supervisor and employee.17
The courts and the EEOC recognize sexual harassment claims on two primary theories: quid pro quo sexual harassment and hostile environment sexual harassment. Quid pro quo sexual harassment occurs when a superior conditions the granting of an economic or job benefit upon submission to sexual conduct or punishes the subordinate employee for refusing to comply with the sexual request.18 Hostile environment harassment exists when sexual or gender-related conduct “has the purpose or effect of unreasonably interfering with an individual’s performance or creating an intimidating, hostile, or offensive working environment.”19
In quid pro quo harassment claims, a five-part test has been used by the courts to decide whether the plaintiff has established a prima facie case. In quid pro quo cases, the plaintiff is required to show:20
(a) The employee belongs to a protected group;
(b) The sexual advances were unwelcome;
(c) The harassment complained of was based upon sex;
(d) The individual’s reaction to the advances affected a tangible aspect of employment such as compensation, advancement, terms, conditions, or privileges; and,
(e) Respondeat superior identity has been established.
Once a prima facie case has been established, the burden of going forward shifts to the employer to articulate a nondiscriminatory reason for the employment decision. The employer may show that there is a basis for the same decision even if the harassment had not occurred. To prevail under a quid pro quo theory, some courts require that the plaintiff show some economic injury, like a promotion or pay disparity, arising from the employer’s denial of the employment benefit.21 Here, the employer is strictly liable for the conduct of supervisory employees who are acting within the scope of their authority. Knowledge of the supervisor’s activities is imputed to the employer under a theory that the supervisor is acting as the employer’s agent.22
The hostile environment theory has frightened employers because many believe they are liable for harassment cases that have occurred without their actual knowledge. Further, hostile environment cases may, in cases where the harassment has some relation to the work environment, involve off-job conduct by co-workers or supervisors.23 Under the hostile environment theory, the plaintiff is required to show:
(a) She belonged to a protected group;
(b) She was subjected to unwelcome sexual harassment;
(c) The harassment was based upon sex or gender;
(d) The harassment affected a “term, condition, or privilege, of employment;”
(e) The employer knew or should have known of the harassment in question and failed to take the proper remedial or preventive action.24
Another important concern in hostile environment cases is that the sexual harassment claim need not be based on conduct that is solely sexual in nature, since intimidation and hostility toward gender can result from conduct other than explicit sexual advances. For example name calling, urinating in a gas tank, and refusing to service a company truck driven by new female employees were considered relevant in establishing a hostile work environment based on gender even though the conduct was not explicitly sexual in nature.25 In addition, in a hostile environment case, unlike a quid pro quo case, it is not necessary that the plaintiff suffer any economic loss of employment benefits.26 Finally, sexual or gender stereotyping can contribute to a hostile environment.27
One of the major issues that may arise in a hostile environment case is whether the fact that the alleged victim voluntarily participated in the relevant sexual conduct is a defense to a sexual harassment claim. The question is answered in the leading case of Meritor Savings Bank v. Vinson28 in which the Supreme Court, speaking through Justice Rehnquist, decided that the test is not whether the victim voluntarily participated, in the sense that she was not forced to participate, but whether the sexual advances were unwelcome.29 In Meritor, she was fondled in front of other employees,30 apparently voluntarily visited motels,31 and participated in sexual intercourse forty or fifty times with her supervisor.32 The supervisor also followed her into the restroom during working hours and exposed himself to her.33 She said she participated because she was afraid of the supervisor34 and in order to attain job benefits that included unusually rapid promotions.35
When she eventually left because of the sexual harassment and filed a federal court action, the bank’s defense was that it had no knowledge of the conduct of the supervisor because she didn’t file a grievance36 and that the plaintiff had voluntarily participated in the sexual activity.37 However, the bank had an employee grievance procedure that did not specifically discuss sexual harassment nor inform an employee how to bypass a guilty superior.38 The Supreme Court decided that the test is not whether the victim voluntarily participates, but whether the sexual attention is welcome.39 Other cases have also said that advances that were initially welcome between individuals can become unwelcome if the victim changes her mind and makes it clear to the man that the advances are no longer welcome.40
The Eighth Circuit Court of Appeals has defined unwelcome sexual harassment to mean that “the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.”41 A woman’s consistent failure to respond to suggestive comments or jokes may be sufficient to express to a man that the conduct is unwelcome.42 On the other hand, the Supreme Court has held that evidence of the plaintiff’s sexually provocative speech or dress may be relevant in determining whether the plaintiff found sexual advances unwelcome.43 In another case, the Eighth Circuit found that nude photographs taken of the plaintiff, and her appearance in a motorcycle publication, were not material to the issue of whether she found the office conduct of other employees hostile.44 Her private life away from work did not mean she acquiesced to sexual comments and advances on the job.45 Finally, if the plaintiff voluntarily initiates or participates in a mutual exchange of sexual comments and jokes with co-workers, this may constitute evidence that the plaintiff welcomed that kind of conduct.46
In a hostile environment case, the harassing conduct must be sufficiently pervasive to alter the conditions of employment and create an abusive environment. Some authorities believe that conduct that keeps the employee from focusing her attention on her job meets this criterion. The plaintiff must also show a practice or pattern of harassment. Usually a single or isolated incident will not be sufficient to establish a hostile environment. Initially the courts decided whether hostile environment existed based on a reasonable person standard. Recently, at least one court has said in cases involving female plaintiffs that the test is a “reasonable woman” standard.47 In that case the court stated:
In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hypersensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.48
This reasonable person or reasonable woman standard was not uniformly applied, however, in the various federal circuits. The Supreme Court dealt with this problem in Harris v. Forklift Systems, Inc.49 The defendant employer in Harris claimed that the plaintiff, a strong self-reliant woman, should not prevail because she was unable to show psychological damage resulting from the harassment.50 The company president called Harris “a dumb ass woman,”51 asked her to visit a motel with him to talk about her raise,52 asked her to get coins out of his pocket,53 tossed objects on the floor for her to pick up,54 said she closed a sale by promising sex to the customer,55 and made sexual innuendos about her clothing.56 The Supreme Court rejected the employer’s psychological harm defense and defined the appropriate standard as (1) whether a reasonable woman would find the harasser’s conduct sufficiently severe or pervasive to alter conditions of employment, and (2) whether subjectively the victim perceived the environment as abusive.57 The majority said that “Title VII comes into play long before the harassing conduct leads to a nervous breakdown.”58 If the environment is hostile and abusive to an employee, there is no additional need for it also to be psychologically injurious.59
What are we to make of the requirements that the conduct be “severe” or “pervasive” enough to create a hostile or abusive environment for the plaintiff or a reasonable person? These terms are troubling to a First Amendment student because neither the EEOC nor the courts bother to define them. “Severe,” “hostile,” and “pervasive” are perplexing terms. Reasonable people, even of the same philosophical perspectives, will differ on what they mean. It is a bit like nailing Jell-O to the wall. We do know that these words have been construed to refer to crude political statements about a member of the congress,60 a painting61 pinups,62 an explicit card,63 and a telephone call.64 Given the “Jell-O-ness” of the rule, it is difficult to judge how others will apply it. There is a real danger that some fact finders, or more likely regulators, will conclude that various religious or political statements, vulgar jokes,65 or indecent art can be severe and pervasive enough to create a hostile environment. More so when the regulators find the expression personally disagreeable or politically incorrect. So, there is a real potential that sexual harassment law can be used to suppress protected speech. It is the nature of the employment context.
The employer’s natural response, given that he does not even know exactly what the terms mean, is to avoid possible liability, and will likely cause him to “shut the employees up.”66 After all, that is the safe approach! An employer concerned about sexual harassment liability can’t profit from the employee’s speech, he can only lose from it.67 This is precisely the chilling effect on protected speech that vague laws and regulations that use untidy words like “pervasive,” “severe,” and “abusive” have.68 Vagueness leads people to steer far wider from the forbidden zone of actual harassment than if the boundaries are clearly marked.69 The employer’s only safe recourse is a zero-tolerance policy. In any case, harassment law poses First Amendment problems regardless of how it is handled because speech that “stigmatizes” or “victimizes” someone does not always strip aside the speaker’s First Amendment protections. Despite these troubling problems, the courts plow on in their quest to cleanse the workplace of “severe” and “pervasive” conduct and speech, whatever the terms mean. The next sexual harassment venture of the Supreme Court was to try to lay down some boundaries for alleged “supervisor” harassment.
In two precedent-setting cases,70 the Supreme Court attempted to clarify the liability tests for employers when a supervisor is alleged to have sexually harassed an employee. They provide a roadmap for employer liability and possible defenses in two relatively common instances. First, when an employee is victimized by a supervisor with immediate (or higher) authority over the employee. And, secondly, in situations when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but when rebuffed, does not act to fulfill the threat.
After resigning as a lifeguard for the city of Boca Raton, Florida, Beth Faragher sued the city and her two immediate supervisors, alleging that the male supervisors had created a “sexually hostile atmosphere”72 by repeatedly subjecting her and other female employees to “uninvited and offensive touching,”73 by making lewd remarks, and by speaking of women in offensive terms.74 She claimed this conduct constituted discrimination in the “terms, conditions, and privileges of her employment”75 in violation of Title VII of the Civil Rights Act.76 Faragher never complained to higher city officials about the treatment.77 Another supervisor once told another female employee, “the city just doesn’t care.”78 There was no showing that higher-echelon officials of the city (employer) had actual knowledge of the two supervisors’ conduct.79 The city had a sexual harassment policy but failed to provide it to the beach employees.80 It made no effort to keep track of the conduct of the two beach supervisors,81 and the city’s policy failed to provide for a procedure to bypass harassing supervisors in filing a complaint.82 The lower courts split on the issue of the city’s liability.
The Supreme Court decided that “[an] employer is subject to vicarious liability to a victimized employee for an actionable hostile sexually environment [claim] created by a supervisor with immediate (or successively higher) authority over the employee.”83 The term “vicarious” generally means performed, exercised, received, or suffered in place of another.84 When the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, firing, failure to promote, reassignment with different responsibilities, undesirable working conditions, or a decision resulting in a significant reduction in benefits, the liability is absolute.85 This is so because tangible employment decisions are the means by which the supervisor brings the official power of the enterprise (employer) to bear on the employee.86 A tangible employment decision, such as a retaliatory discharge for rebuffing sexual advances, requires an official act of the enterprise, a company act.87 For these reasons, a tangible employment action taken by the supervisor becomes, for Title VII purposes, an act of the employer.88
The next question is whether there is employer liability when the commission of supervisor sexual harassment does not result in a tangible employment action.89 Here, the answer is less obvious. However, the Court did provide important guidance for management on steps that may be taken to avoid liability.90 The Court did so by establishing two affirmative defenses that may be raised when no retaliation or loss of tangible job benefits has occurred.91
In Faragher, the Court said that when no tangible job action is taken against the employee, the employer may raise two affirmative defenses to liability or the award of damages:92
(a) [T]hat the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) [T]hat the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.
Justice Souter wrote that the need for a stated sexual harassment policy and grievance procedure suitable to the employment circumstances may be addressed in litigating the first element of the defense,93 and that a demonstration that the complaining employee unreasonably failed to use the established complaint procedure will normally suffice to satisfy the second element.94 Applying the two affirmative defenses to the facts of Faragher, the court found as a matter of law that the city could not have exercised reasonable care because it failed to provide its sexual harassment policy to beach employees, made no attempt to keep track of the two beach supervisors’ conduct, and its policy failed to provide a procedure to bypass harassing supervisors.95
Kimberly Ellerth quit her job after 15 months as a salesperson with Burlington Industries, alleging she had been subjected to sexual harassment by a mid-level supervisor, Ted Slowik.97 Slowik had authority to hire and promote employees, subject to higher approval: he was not a policy maker.98 Ellerth claimed to have been subjected to repeated boorish and offensive sexual remarks and gestures and was threatened with a loss of job benefits.99 On one occasion when she failed to respond to remarks Slowik made about her breasts, he told her, “you know Kim, I could make your life very hard or very easy at Burlington.”100 Ellerth rebuffed all of Slowik’s advances, yet suffered no retaliation and was, in fact, promoted once.101 Moreover, she never informed anyone in authority of Slowik’s conduct despite knowing about Burlington’s sexual harassment policy.102
Justice Kennedy again held that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate, or successively higher, authority over an employee.103 The liability is absolute when the employee has suffered the loss of a tangible job benefit, like a promotion, for rebuffing the sexual harassment.104 Again, the Court maintained that when no tangible job action has been taken against the employee, the employer may raise the two affirmative defenses of reasonable care to prevent and promptly correct sexually harassing behavior and the unreasonable failure of the employee to take advantage of preventative or corrective opportunities provided by the employer’s sexual harassment policy.105 The Court remanded the case to the trial court for a determination of whether Ellerth had a claim for vicarious liability and whether the affirmative defenses applied.106
The decisions in Faragher and Burlington clearly illustrate several public policy goals of the Supreme Court. First, the Court is clearly sending a signal to employers that the actions of a supervisor, which affect a tangible job benefit of the harassed employee, will trigger absolute employer liability because they are company acts.107 Secondly, the primary purpose of Title VII is to “make whole persons who suffer discrimination.”108 The Court is advancing this primary purpose by demanding that employers publish, educate employees and supervisors about, and enforce sexual harassment grievance procedures. Finally, the Court is encouraging employees to mitigate any damage to their employment by requiring them to take advantage of those employer-promulgated sexual harassment grievance procedures in order to prevent a hostile environment. It apparently seeks to promote these goals by providing a reward in the form of an affirmative defense to employers who comply and to deny recourse to employees who refuse to follow properly drafted employer sexual harassment grievance procedures. Thus, the next important question is what kind of employer action is necessary to comply and avoid liability for supervisor harassment?
There are several steps the astute employer may take to limit liability for supervisor sexual harassment claims. First, all supervisors should be informed, in writing, that sexual harassment of a subordinate that affects a tangible job benefit, as previously defined, will result in absolute employer liability. This is so because the denial of a tangible job benefit, for the purposes of Title VII, becomes a company act.109 There are, in addition, several preventive steps that must be taken in regard to all employees.110 They are:
(1) The employer should publish a strong, well-articulated policy concerning sexual harassment;
(2) All employees should be informed of, and provided a copy of, the policy;
(3) The CEO should clearly and forcefully advise all employees that sexual harassment will not be tolerated.
(4) The complaint procedure should allow employees to report sexual harassment to someone other than the harassing supervisor;
(5) Supervisors should be informed, in writing, that the employer is absolutely liable for a supervisor’s sexual harassment involving the loss of an employee’s tangible job benefits; and
(6) The employer should swiftly take appropriate remedial action by fairly investigating, taking effective action, protecting the victim from retaliation, and restoring any lost tangible job benefits in a timely manner.
Many astute employers have already taken some or all of these preventive steps. A careful reading of some previous sexual harassment decisions reveals that the courts, as a matter of policy, are requiring employers to educate their employees, adopt effective and fair complaint procedures, guard against retaliation, and effectively deal with sexual harassment complaints. For example, the courts will consider a policy that specifically addresses and effectively deals with sexual harassment when reviewing liability issues.111 Those employers whose sexual harassment policies and procedures do not comport with these decisions are well advised to adopt the appropriate policies forthwith.
As previously stated, employers are very concerned about strict liability under the so-called hostile environment theory, correctly contending that the conduct complained of may have occurred without their knowledge. Given Faragher and Ellerth, what kind of action can the employer take that will constitute a legitimate defense against both quid pro quo and hostile environment sexual harassment claims? The law in this area is still developing, but some commentators say that there are several key steps that employers can take to protect against liability.112 In fact, the EEOC, by regulation, mandates that the existence of a sexual harassment policy and complaint procedure is relevant and will directly affect the employer’s liability.113 Thus, the failure to provide a reasonable policy and complaint procedure for employees is convincing evidence that the employer has ignored the problem, and will likely lead to employer liability for sexual harassment claims.
A careful reading of Meritor also shows that the Supreme Court will consider effective a policy that specifically addresses sexual harassment, rather than merely discrimination, when reviewing liability issues. We also know from Meritor that a procedure requiring the employee to complain to or through the person who is the harasser is an inadequate defense because it violates EEOC guidelines.114 The EEOC guidelines recommend that the employer’s remedy should be “immediate and appropriate.”115
Perhaps the most instructive case for employers is Barrett v. Omaha National Bank.116 Here, the Eighth Circuit held that an employer properly remedied a hostile working environment by fully investigating, reprimanding a harasser for grossly inappropriate conduct, placing the offender on probation for ninety days, and warning the offender that any further misconduct would result in discharge.117 One court says the remedy should be “reasonably calculated to end the harassment.”118 One can convincingly argue that the failure of an employer to provide a grievance procedure for sexual harassment is evidence of employer contribution to a hostile sexual environment and would result in liability.
One of the distressing traps that employers have fallen into in the past is, despite their good motives, appearing to be insensitive to the victim of harassment. In one case, the Internal Revenue Service allowed the harasser to continue to send bizarre letters to the victim after he had been told by his superiors to stop. Then, when they failed to stop the harassing conduct, they actually transferred the victim, rather than the harasser, to another city.119 The bottom line is that an employer has an affirmative duty to take immediate action in sexual harassment matters, and that an honest effort to comply with that affirmative duty is often going to be a satisfactory employer defense.
What responsibility, if any, does a victim of sexual harassment have, and how can the victim protect herself?120 Many victims tolerate harassing behavior for a considerable period of time because they believe that if they do not say anything the problem will just disappear. This is probably the worst approach to follow because the harassment may be motivated as much by the exercise of power over the victim as by sexual interest. Generally, the victim should speak up and make quite clear to the harasser that the unwelcome conduct will not be tolerated. The victim should keep careful records of what is happening, including times, dates, and locations. The victim should also create a record by writing a letter to the perpetrator or to a trusted friend carefully outlining what has occurred.121
Employers clearly have a responsibility to develop effective policies to deal with sexual harassment in the workplace. Those employers who have not already developed separate and effective sexual harassment policies are placing their financial assets at risk. The successful sexual harassment policy will be supported by the chief executive officer,122 offer a clear and convenient, separate method of complaining about sexual harassment,123 provide for an immediate and fair investigation,124 and demonstrate to employees that sexual harassment will not be tolerated and that disciplinary action will be taken swiftly.125 Employers who establish and follow an appropriate sexual harassment policy will benefit from a lessened risk of employer liability. The employer who heeds Justice Ginsberg’s admonition that “[i]t suffices to prove that a reasonable person subjected to discriminatory conduct would find … that the harassment so altered the working conditions as to make it more difficult to do the job”126 will have little concern about sexual harassment in the workplace. What rational employer wants employees not to focus on the job at hand? But, is this the best way? We now turn to a philosophical, property-rights approach to escaping government coercion.
We have set the stage for our consideration of sexual harassment law by describing it, giving its rationale, citing cases, and offering advice to employees and employers as to how they can most likely avoid becoming enmeshed in lawsuits concerning this offense. We have in this way, to the best of our ability, analyzed it from a positive perspective. But to do so is only to set the stage for examining these legislative and judicial enactments from the normative point of view. We now leave off our description of these laws and how they work and take up a discussion of whether or not these laws are just and, even, logically coherent. In a word, the answer we offer is, “No.”
It is now time to cast a baleful, philosophical eye on the entire enterprise of sexual harassment legislation, prohibition of quid pro quo agreements, and legal opposition to hostile environments. We do so from the classical liberal perspective, one based on private property, contract, freedom of association, and free-speech rights.127 In this view, all human interaction should be voluntary. The law should prohibit only those acts that violate the rights of people to the sanctity of their persons and justly owned property. To relate this to the issue at hand, the law against rape is certainly a legitimate one. For when this act occurs, a man exerts physical force against a woman128 in opposition to her own will; this is an invasive act, one which attacks a woman’s most important private property right, that in her own person.129 This holds, too, for assault and battery, which encompasses even the slightest of unwanted touching.130
Let us now consider how a hostile environment stacks up in this regard. We argue that it is not a per se violation of human rights. One can readily imagine a scenario in which women are subjected to the most hostile of sexually tinged environments, where they are paid to accept such treatment, and do so willingly—for example, a strip bar. There, men taunt women; they ask them to disrobe; they make lewd and suggestive remarks about their figures, their clothes, their makeup; they tell off-color jokes, etc. It is hard to imagine an environment more sexually hostile than that. If we are to take seriously laws prohibiting a hostile environment, all such establishments should be shut down, forthwith. From the fact that they are not, that is, that firms which provide such services are allowed to operate with legal impunity, we may deduce that the prohibition of a sexually hostile environment is honored more in the breach than in the fact. Further, we may also conclude that there is something philosophically suspect about legislatively proscribing hostile environments. It is as if rape or murder were declared illegitimate, except when it occurs legally. We have here, in other words, a legal system with no less than an inner contradiction.131 We as a society have not banned strip clubs, nor should we, since they are instances of “capitalist acts between consenting adults.”132 But strip clubs are a paradigmatic case of sexual harassment. Therefore, logical consistency requires that since strip clubs are legal, then so should sexual harassment be, for the latter is precisely and exactly what takes place in the former.
And no less is true of quid pro quo, the bête noir of the feminists. The essence of this sort of agreement is voluntary mutually beneficial trade, barter or exchange: you give us this, and we will give you that. As such, quid pro quo is the very basis of the free enterprise system and, indeed, of the entire western cultural vision of society. There are, after all, only two possible ways for human beings to interact with one another: through seizing each other’s person and property, or receiving them (or the use of them) only with the agreement of the other party, typically in return for something of one’s own. Norman Rockwell drew a very famous Saturday Evening Post magazine cover, depicting a milk deliveryman and pie deliveryman, each one sitting in his own truck and partaking of both food items. Nothing can better illustrate quid pro quo than the sort of peaceful trade that occurred immediately prior to this artistic rendering. We are certainly not ready to rule out all purchases and sales on the ground that they are living illustrations of quid pro quo in action. Given this, there are no logical grounds on the basis of which we can insist that they not be allowed in this one aspect of the law.
Consider the fact that prostitution is legal in some parts of Nevada.133 The implication is that, at least in these areas, it is licit to offer consideration for sexual services. But if so, then it is well within the law to make what would otherwise be considered lewd and lascivious offers to women—namely, money for sex.
Suppose that we, the authors of the present paper, set ourselves up as the Blockhead Corporation, located in Reno, Nevada, and wish to hire a female who would function half time as a secretary and half time as a prostitute. We advertise for the usual secretarial skills (typing, filing, correspondence, etc.), and also for those suitable to the other half of the job as well. After she is hired, we avail ourselves of both types of her accomplishments. We have now probably violated, and with a vengeance, every injunction in the panoply of the genus sexual harassment, species quid pro quo and hostile environment. Nevertheless, we should not be considered law violators.134 Prostitution is legal. And this applies too, to secretarial services. Yet, it should not be the case that when we combine two perfectly legal, contractual, employment interactions, the sum total of them should be considered illegal. It is difficult for the logical mind to come to any such conclusion.135 Nor is it any proper objection to our thesis to claim that prostitution is legal in only a small part of the country.136 There are two possible rejoinders to this. First, if quid pro quo contracts with females and the imposition of an environment hostile to them can be demonstrated as behavior which violates no law (even if only in most of Nevada), then we have shown that there is nothing per se problematic about sexual harassment. If so, it should not be proscribed anywhere else, either. Second, a case on libertarian grounds can easily be made on behalf of legalizing prostitution in all other jurisdictions. After all, if a woman really owns her own body, an oft-made contention of the feminist and pro-choice forces,137 then she can decide for herself to use it to provide sexual services to men for a fee. Denying this is to turn back the clock to an era in the U.S. when the signature of an adult woman on a contract would be considered null and void.
Suppose, however, that a foreman of the Blockhead Corporation, unbeknownst to us, makes a quid pro quo offer to a female employee: either go to bed with him and get a raise, or refuse and be fired. Now, it has already been established that we, the owners of the corporation, have a right to do this, provided no physical threat or fraud occurs. And, if it is licit for us to engage in such activities, it is also legitimate for us to pass on to our foreman the right to operate in this manner. We might do so, for example, in lieu of paying a higher salary.
But suppose our policy is not to allow quid pro quo (sex for money) contracts in our corporation on the part of our employees, but our foreman does this on his own initiative. Let us consider the libertarian analysis that applies in this case. Our answer is that while this man did not violate the rights of the woman (after all she, is an adult, a free agent, able to make up her own mind about offers of this sort), he did transgress against us, the owners of the firm. Rothbard’s analysis of the analogous case of payola is worthy of quotation at length:
In a typical payola scandal, a record company bribes a disc jockey to play Record A. Presumably, the disc jockey would either not have played the record at all, or would have played Record A fewer times; therefore, Record A is being played at the expense of Records B, C, and D which would have been played more frequently. … Surely, in a moral sense, the public is being betrayed in its trust in the disc jockey’s sincerity. … But the public has no property right in the radio program, and so they have no legal complaint in the matter. … The other record companies, the producers of Records B, C, and D, were also injured since their products were not played as frequently, but they, too, have no property rights in the program. …
Was anyone’s property rights aggressed against by the disc jockey’s taking of a bribe? Yes, … the disc jockey violated his contractual obligation to his employer … to play those records which in his view will most suit the public. Hence, the disc jockey violated the property of the station owner or sponsor. … [I]t is the disc jockey who accepts payola who has done something criminal and deserves to be prosecuted, but not the record company who paid the bribe.
Furthermore, if the record company had bribed the employer directly … then there would have been no violation of anyone’s property right and therefore properly no question of illegality. Of course, the public could easily feel cheated if the truth came out, and would then be likely to change their listening custom to another station or sponsor.138
As for the payola-accepting jockey, so for the foreman of Blockhead who uses this firm for his own advantage, against his employers’ interest. The woman in the case no more has her rights violated than do the producers of Records B, C, and D, nor the listening public. Further, were the radio station to allow the disk jockey to accept payola from Record Company A, in lieu of a higher wage, it would be entirely within its rights, since the radio station and only the radio station owns the right to play what it wishes. Similarly, if Blockhead pays the foreman with lower wages, but allows him the right to engage in quid pro quo contracts with the female employee, then again no one’s rights are violated.
There is an obvious point to be made here—the owners of the firm own the right to engage in quid pro quo contracts with female employees. If they cede it to a foreman, for mutually agreeable consideration, well and good. But if he seizes this on his own, he is stealing from the firm. The kernel of truth behind legal prohibitions of quid pro quo dealings on the part of employees is this: without the express permission of the employer, it amounts to theft from the employer. Thus, quid pro quo may be legitimately precluded from the workplace in certain circumstances. This arises not due to any intrinsic impropriety, but because it is a prerogative of the firm, and the firm’s owners object to the use of quid pro quo on the part of their male subordinates without permission.
There is a bottom line in all of this: hostility is in the eye of the beholder. There is no such thing as an objectively defined hostile environment. The reasonable woman standard is an exercise in logical futility, for female tastes in this (as in so much more) vary widely. One woman’s hostile environment is another’s ideal employment situation. The female who is comfortable working in Hooters might be very unhappy employed by a nunnery; one who can prosper in the milieu of a house of prostitution might feel out of place in a kindergarten. Similarly, those who yearn to work in a library, bank, elementary school, or law office might not find a safe and happy harbor as a waitress in a topless restaurant.139
Let us now consider in detail some of the specifics of this law discussed above in a purely descriptive manner. We shall intersperse commentary into the citation of the law. As we state above:140
Sexual harassment in the office means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
(a) Submission to such conduct is either explicitly or implicitly made a condition of an individual’s employment.141
This may be disregarded. If it is agreed to by consenting adults, there is no warrant for setting such a contract aside, any more than there is for any other such agreement.
(b) Submission to or rejection of such conduct by an individual is used as a basis for an employment decision effecting such individuals.142
There is no other rational way in which the bordello employer can decide whom to employ.
(c) Such conduct has a purpose or effect of substantially interfering with an individual’s right to work in an environment free of intimidation, hostility, or threats stemming from acts or language of a sexual nature.143
A woman may indeed have such a right.144 But if she does, she also has a right to renounce it, for a fee, if she so wishes. To deny the latter is to deny the former. That is, if the EEOC maintains that a female does not have the right to relinquish what would otherwise be her right not to be continually approached in a sexual manner, then she cannot have that right in the first place, contrary to the views of this regulatory body.
(d) The conduct interferes with an employee’s ability to focus on the job responsibilities.145
Consider again the Blockhead firm located in Reno, Nevada (or anywhere else where prostitution is legal). None of our sexual advances can be considered unwelcome since the woman we hire will contractually agree to accept these overtures. It is an explicit part of the contract; by signing it, she obligates herself to perform these duties. We may indeed legitimately threaten her if she withholds sexual services because in such a case she is guilty of contract violation. Our threat would be similar to that of any (ordinary) employer whose secretary refuses to type and file, or whose bordello prostitute refuses to entertain men in bed: she will be fired and her salary go unpaid. It is impossible, moreover, for our conduct to interfere with the employee’s ability to focus on job responsibilities because these are precisely her job responsibilities. We continue to cite from our previous description of the law:
Some behaviors found by the EEOC and the courts to constitute sexual harassment are:
(a) Sexually suggestive or obscene comments, threats, insults, slurs, jokes about gender-based traits of a person, or sexual propositions.146
But it is obvious, the politicians responsible for these laws notwithstanding, that this is precisely what occurs in a peep show emporium, or with regard to a Victoria’s Secret catalogue. If the law does not prohibit these activities, and it does not, then it is intellectually incoherent for it to proscribe so-called sexual harassment.
(b) Physical conduct such as intentional touching, pinching, brushing against another’s body, suggesting or coercing sexual intercourse, or physical assault.147
Coercing sexual intercourse is rape. Intentional unwanted touching and pinching and brushing constitute battery. No responsible legal commentator opposes the prohibition of such per se criminal behavior. But suggesting sexual intercourse is surely an entirely different matter. If the EEOC and the courts ever succeeded in eliminating such suggestions, this would sound the death knell for the human race. That the dating and mating game should be played out only, perhaps, at least so far, in bars, while legally prohibited from churches, universities, and the workplace, is certainly not mandated by the idea that coercion should be banned from human interaction.
The point is, suggesting sexual intercourse has widely been interpreted as promoting a hostile environment, or constituting sexual harassment, when it occurs on a college campus, especially if the suggestor is a male professor and the suggestee is a female student. Similar findings have been made for the business firm, particularly if the initiator of this suggestion is a male boss, and it is made to a female subordinate. And yet, as we have seen, suggesting sexual intercourse is the paradigmatic action at the Blockhead company. We have already established the legal validity of this firm’s practices (at least in most parts of Nevada). Legal consistency requires that, at the very least, suggesting sexual intercourse be allowed in these domains. Suggesting sexual intercourse, at least at some point in the heterosexual relationship, is the primary vehicle for the perpetuation of the human race. If this is deemed per se illegal harassment, it can only serve the interests of those who oppose heterosexuality.
(c) Non-verbal behavior such as leering or staring at another’s body, displaying sexually suggestive photographs, cartoons, or magazines.148
Movies, television, and Broadway shows are nowadays replete with partial, frontal, and total nudity; it is unreasonable to expect that viewers would resist leering or staring at another’s body. Were such a law to be carried out in a logically consistent manner, not only could there be no such industries, women would be confined to wearing chadors, as is the practice of the Taliban in Afghanistan and in many of the Islamic countries. This is hardly the direction in which we really want to go.
(d) Continued expression of sexual or social interest in an individual after being informed that the interest is unwelcome.149
There are many thousands and thousands of cases on record of successful marriages of several decades and more duration where the husband’s initial overtures to the wife were at first rebuffed. But the male, as was his wont,150 persevered. He was pressing and persistent. This might not please the feminists in the courts and in the EEOC, but this is part and parcel of male human nature.151 According to what might be called the heterosexual norm, or ethic, the man is the pursuer, the woman the pursued. She sets up roadblocks, he overcomes them. The female, not the male, is the coy one. But this model does not resonate well in these modern, politically correct times. Here, the sexes are supposed to be equal. The woman has as much right to initiate contact as the man.152
Of course, it is possible to go too far in this direction. There is, after all, such a thing as harassment, in contrast to rape. Even if the male expression of interest is limited to sending flowers, notes by mail, and leaving telephone messages (as opposed to physical invasion), it is possible for enough to be more than enough. But, for such cases, we already have remedies on the books (obtaining a protective order and anti-stalking statutes) and hardly need the minions of politically correct EEOC feminists to improve matters.
To anticipate the burden of the next section, on how a free market can alleviate legitimate harassment problems, reflect on the following: mail sent by an unrequited suitor is now delivered by the public postal monopoly; were this industry fully privatized,153 there is little doubt that firms would deal with junk mail far more efficaciously than at present. Telephone messages come courtesy of one of the most highly government regulated of industries. A bit more economic freedom here, too, might well eventuate in the more efficient elimination of junk phone calls. Flowers are commonly delivered on public streets. Under full free enterprise for this industry, there is little doubt that unwanted flower deliveries, too, would be better squelched.154
(e) Belief that an individual required to consent to the foregoing behavior as a term or condition of her employment.155
Sexually suggestive comments are precisely what the secretary-prostitute of Blockhead signed up to tolerate. Nor were her duties limited just to tolerating off-color comments either. There is no way that sexual intercourse can be coerced here any more than in a house of prostitution. Nor need one resort to the Blockhead case to deal with leering or staring at another’s body. Such behavior occurs in every Hooters, every Playboy Club, in every topless establishment, in every restaurant where women wear micro miniskirts and other revealing costume. They are hired for the express purpose of being leered at, with their own consent. Were they not the sort of people to call forth this type of male behavior, they would be fired, or not hired in the first place.
So far, we have been arguing that sexual harassment law is illogical, insofar as it involves voluntary, mutually agreeable behavior between consenting adults. That is, unless there is a fraudulent promise that normal heterosexual overtures will not take place in given premises, any woman who is on the receiving end of such behavior is free to take a different job; that she stays in her present position, where such overtures occur, is an indication that she values the package of work plus being “victimized” more highly than her next best alternative. Laws attempting to prohibit such occurrences thus constitute an ill-conceived response to what is a non-problem: ordinary heterosexual male-female, water-cooler-type interaction. This does not at all mean that, in this view, modesty and decorum and non-aggressive male behavior are out of reach for the women who do not yearn to be artists, models, actresses, prostitutes, or topless waitresses. The solution, in this perspective, may not emanate from the courts and the EEOC, but it nonetheless plays an important role in our society.
Very much to the contrary of the usual supposition on these matters, the answer is provided by the free enterprise system. In order to see this, we must discuss some concepts in labor economics. Heterosexual males vary in their presentations of themselves to heterosexual females, all the way from courtly behavior suitable to the Knights of the Round Table to that of the boor and lout.156 Consider the position of a manager of a firm with a large number of females on staff, who is called upon to deal with one of the latter.
As is well known in economics, wages tend to equal the marginal revenue productivity of the worker.157 But this includes not only the amount that the employee himself can add to the bottom line, but his effect on the contribution of others.158 Let loose a few churls in the establishment, even those who full well know their job, and the productivity of most if not all of the females will plummet. Thus, as an employer, you would either not hire the barbarian, or you would only be willing to pay him a very low wage (perhaps, even, a large, negative one) which is but another way of saying you would not hire him at all. A firm which also employed a large number of females, particularly ones sensitive to crude male behavior, and insisted upon hiring such men, would be consigned to the dust bin of economics, i.e., bankruptcy.
The market, then, is a woman’s best protector against untoward male behavior. The scalpel of the free enterprise system will better rid women of unwanted attention than the bludgeon of government law. For if the government errs (as we have been arguing) there is no automatic feedback mechanism which forces it to mend its ways. If it loses money, it can always make up for this shortfall by increasing taxes, or reducing other expenditures. In the private sector, in contrast, a loss of profit is absolutely crucial. The market is a better supplier not only of women’s rights,159 but of comfort in social settings than is the law (which can legitimately be used only to quell assault, battery, and rape).
Yet another example of business coming to the rescue of female sensibilities concerns restaurants and other such establishments that are open to the public and earn profit only from satisfied customers. Bouncers in a bar put a damper on verbiage that borders on abuse. The last thing an owner wants is for women to be made uncomfortable in his emporium. The search for profits leads the proprietor, as if by an invisible hand,160 to do that which is in the interests of his female customers.
However, consider wolf whistles that typically occur on sidewalks. Feminists, and even others, take sharp exception to these outbursts. To them, this type of behavior shows male contempt for females; the interpretation is that the former see the latter only as a form of meat or sexual object.161 But there is a reason why this objectionable behavior still occurs; nowhere is it written in stone that the market is supposed to come to the rescue of all maidenly sensibilities.
These wolf whistles are predominantly launched by construction workers and their ilk. The economic analysis we have offered does not apply to such situations because of externalities: the victimized women and the victimizing men are not employed by the same firm. If they were, the arguments mentioned above would provide sufficient incentive for the employer to bring them to a quick halt. Most economists would characterize this as a market failure.162 But it is no such thing.163 It is due not to a market failure, but to a failure to allow markets to operate in the first place. For example, if the streets were privately owned,164 the proprietor of the sidewalk would have exactly the same financial incentive we have attributed to the owner of the bar and restaurant. Women who were annoyed by wolf whistles would not frequent his street establishment; since his profits depend upon the number of satisfied customers, he would have every inducement to deal with street whistlers as with offensive lounge lizards.
Consider the kinds of establishments for which boorish men typically work, if not in organizations that employ numerous women. After all, there are an awful lot of men who act in this manner, and they have to work somewhere.
Traditionally, the market solution is segregation. Boorish men tend to be diverted to places where they will do the least harm to the fairer sex: in the forests, deep sea fishing, merchant seamen, steel mills, putting out fires, etc. The problem with affirmative action165 is that it breaks down such answers to the problem; such firms are forced to hire females. It is as if there were two groups of people who hated each other on sight (e.g., boorish men, and women who view their treatment of women as very harmful). The market, naturally enough, would tend to segregate them, so that they would not be continually at war with one another. Along comes government, not able to refrain from interfering, and pursues policies that put these two groups into close and unwelcome proximity with one another. The result, of course, is chaos.166
The same economic analysis that applies to cigarette smoking can be utilized in the present context. Perhaps this furnishes a better analogy. Here, there is one group of people (the smokers) that create a nuisance (second-hand smoke), and another group that feels victimized. The government, in its infinite wisdom, bludgeons all establishments into adopting the same rules: previously, to set up smoking sections; but now, more and more, to ban indoor smoking entirely.167 In sharp contrast, the market, driven by profit considerations (e.g. customer satisfaction), wields a scalpel. Some shops, such as those which supply health foods, ban smoking entirely. Others, such as pool halls, billiard rooms, bowling lanes, bars and grills, place no rules whatsoever against this practice. And then, in the vast middle ground, there are a plethora of rules stipulating smoking times, days, sections, etc., all in an attempt to tailor their response to consumer demands.168
So far, we have analyzed male-female interaction from the former vantage point. Let us now consider the latter perspective. Suppose, now, that most females, as contended by those responsible for the repression of sexual harassment, are very reticent and shy. For them, the ordinary behavior of robust, heterosexual males is odious. Apart from refusing to pollute the work premises by hiring males, as we have just discussed, let us now discuss how the market will protect women from male overtures.
Again, the system works through competition. Not only are firms in competition with each other in the product or final goods markets which is well known, they also compete with one another when it comes to hiring workers. The preeminent form of rivalry is, of course, the wage paid. But employers also contend with each other over employees through the provision of working conditions.
Consider, as an analogy to our case in point, the question of air conditioning. The employer faces the choice of whether or not he should install this amenity on his premises for the enjoyment of his workers. If he does, he will undergo a cost. On the other hand, he will more likely satisfy, attract, and retain employees. The profit-maximizing firm will engage in this expense if he can thereby recoup these costs in the form of lower wages paid. Most employees would accept a reduced wage in an air-conditioned factory in preference to the otherwise identical job lacking such favorable working conditions. Those firms which do not install air conditioning have to pay higher wages. Workers tend to sort themselves out based on their tastes for air conditioning. Those who spurn it tend to gravitate to old-fashioned types of surroundings, where they are paid more, and have to forego the benefits of cooler air. Those who like it, but only slightly, can be found in premises of either type. And those who cannot get along without it tend to aggregate in air-conditioned facilities, even at the cost of a wage cut.
Women, too, differ in their taste169 or distaste for assertive/aggressive male behavior (e.g., for what is considered by some to be a hostile environment). There are some, call them Ls, who have a marked aversion to all such goings on. They tend to gravitate to work environments which preclude males altogether (e.g., a nunnery, a kindergarten). Others, at the opposite end of the continuum, call them Ps, relish these sorts of hostile environments. In the middle, the category of probably most females, call them Hs, are those who take an intermediate stance on this issue.
Assume that, apart from this issue, the marketable skills of all three groups are equal. Then, with equal productivity, we would expect money wages not to differ between them. Now, let us introduce the issue of hostility of environment. Under the economic system of laissez faire capitalism, firms are free to institute a policy proscribing a hostile environment or not. That is, completely as a private matter, they can offer contracts to males,170 positing that if they are found guilty of sexual harassment, they will have to pay a penalty, for example, forego a bond they have to post upon being hired. This will undoubtedly imply a cost, as in the air conditioning case, for there will be the additional disbursements in order to monitor the system, hiring hearing officers to determine guilt or innocence, to say nothing of the extra monetary and psychic costs imposed on males.
Let us now consider employer incentives to introduce such a system, given that he is “free to choose.”171 He would do so if he could thereby reduce his costs in the form of lower wages, which he could thereby pay to appreciative females. There are those, of course, who would object to the fact that women have to pay a compensating differential in the form of lower wages. After all, they are the victims, not the aggressors. If this is market fairness, we want less of it, not more, they might say. This objection misses the point, however. Here, we are discussing not the first case where there was a large majority of women, and males were made by the market to either toe the line or not be hired at all. Rather, we are now considering the case of a male-dominated industry or firm (e.g. oil refinery, lumberjack, steel mill, coal mine) where the sensibilities of women work, mainly, to reduce the productivity of men. Under these circumstances, of course, women will have to lose out financially in the market, compared to the situation where they had no such negative effects on the productivity of men. It is the same with all statistical outliers. Men who are over seven feet tall and weigh more than 300 pounds, or who are less than five feet tall and weigh in at under 100 pounds, cannot buy off-the-rack clothes. They must purchase tailor-made products, and these cost more. Similarly, it is costly to tailor the reactions of hordes of men to female sensibilities.
(f) Employer responsibility for acts of non-employees such as customers or service technicians, when the employer knows, or should have known, of the unwelcome conduct and fails to take immediate or appropriate action.172
Perhaps the most evil and insidious aspect of this whole episode is the requirement that one person be held accountable for the actions of another. Let us here accept, if only for the sake of argument, that there is indeed a crime of sexual harassment. Placing responsibility for such acts on those who have not committed them is highly improper. Whether it is employees of the firm, customers, suppliers, their employees, it matters not one whit—under this law, the employer will be found guilty even though he had no part whatsoever in the harassment.
That alone ought to be enough to establish the illegitimacy of vicarious liability, for the entire corpus of law is built on the bedrock that the guilty party, not anyone else, shall pay for his crime. Suppose a transportation firm hires a driver to convey passengers in its bus from one city to another in a safe and law-abiding manner. Instead, this employee drives recklessly, and hits another vehicle. In justice, only this negligent chauffeur should be forced to compensate the victims. In actual point of fact, however, it is likely that the firm itself will be made liable.173 This stems from an unjustified search for “deep pockets.” Just because the malfeasant driver does not have enough money to fully compensate the victims does not render it appropriate to attack the bank account of a totally innocent person, the owner of the firm.174
The view underlying sexual harassment law, in contrast, is predicated upon vicarious liability or respondeat superior. Here, one person, the employer, can be held liable for the crimes or torts of another, even though the party of the first part did not ask the party of the second to commit the act. No greater injustice can be imagined.
Rothbard goes so far as to characterize this as the “notorious theory of vicarious liability.”175 States Thomas Baty: “In hard fact, the reason for the employer’s liability is the damages are taken from a deep pocket.”176 And in the view of Prosser,
most courts have made little or no effort to explain the result, and have taken refuge in rather empty phrases, such as … the endlessly repeated formula of “respondeat superior,” which in itself means nothing more than look to the man higher up.177
In our own rendition of this aspect of the law, we state, “the employer is strictly liable for the conduct of supervisory employees who are acting within the scope of their authority.”178 (This, of course, was reportorial, not advocated by us.) And, indeed, there is a certain coherence to this way of putting the matter. For if the “employees … are acting within the scope of their authority” in their malfeasance, then, and to that extent, the employer should be responsible for their acts, in that he in effect ordered them to commit the tort. But that is not at all what the EEOC is mandating. Here, there is the far lesser requirement only that the employer “knows, or should have known, of the unwelcome conduct and fails to take immediate or appropriate action.”
But this should not even be relevant. If A knows that B is about to rob a grocer, it is clear who should go to jail when this nefarious activity actually occurs. Obviously B is the guilty party, and A a total innocent.
If the law is going to hold employers responsible for acts of employees, all in the search for deep pockets, there is no rational end to this process. Suppose an employee commits an actual rape of a co-worker. It is clear that, in a just society, only the rapist should go to jail. To incarcerate the employer would be an injustice. Obviously, only the rapist is guilty of the crime, and should do the time, and this holds true whether the rape occurs on the business premises or somewhere else.
But there are other anomalies in this situation. It is unreasonable to hold employers responsible for employees, since the latter are in effect agents of the former; but if we do, then logical consistency requires that we should hold all principals responsible for the acts of their agents. For example, following this line of reasoning, we would hold the tenant or landlord responsible for the acts of the real estate broker; the investor for the acts of the stockbroker; business partners, or spouses, for that matter, for the acts of each other. Alternatively, if the reason we are holding the employer responsible for the acts of the employee is that the former is higher up in the sociological hierarchy than the latter, we might consider generalizing this relationship, too. If we did, we would then jail landlords for the acts of their tenants. But it is merely Marxist drivel to think that employers have more power than employees (tell that to Michael Jordan and Jerry Reinsdorf) or landlords than tenants (tell that to the landlord of Bill Gates or Donald Trump). This being the case, then, we might with equal illogic hold employees responsible for the acts of employers, or tenants responsible for those of their landlords.
Vicarious liability and respondeat superior are a search for deep pockets, not justice.
If sexual harassment laws are the unmitigated disaster we have made them out to be, we must now attempt to explain why we have them on the books.
One way to answer this question is to ask, “Who benefits from this legislation?” The underlying theory is that those who gain from these enactments were likely instrumental in their passage in the first place, and in their subsequent support.179
The point is, it is difficult to avoid the conclusion that sexual harassment law in general, and the idiosyncratic definition and interpretation of hostile environments, are aimed at interfering, as much as possible, with normal male-female interaction. As we have seen, it is entirely unremarkable for heterosexual males to take the initiative in setting up relationships with heterosexual females. If they are to do so, they must necessarily at least sometimes make overtures which are unwelcome. There is no way that they can possibly know, for sure, before the fact, whether their suits shall be welcome or not, even apart from the traditional coyness of heterosexual females. To penalize heterosexual males for such behavior is surely an attempt to reduce it.
When looked at in this way, there are some obvious candidates to play the role of beneficiary of these laws: all those who gain from making it more difficult for heterosexual men and women to interact with one another in traditional courtship patterns. This would include lesbians, since if men were kept apart from women, some of the latter might become attached to female homosexuals, whom they previously spurned; also female man-haters, on ideological grounds. Homosexual men would gain in a similar manner, if heterosexual men are cut off from heterosexual women. The point is, there are always people on the margin of homo- and hetero-sexuality; make things more difficult in one of these directions, and at least some of these will become inclined to the other direction.
As well, there are the feminists who oppose [male] freedom almost for the sake of opposing freedom.180 The idea that men, mostly assertive, often boorish, should be able to approach women with impunity for the ultimate purpose of heterosexual intercourse must be anathema to them. To this rogues gallery we must add the over-populationists181 and other radical-wing environmentalists for whom the ideal of fewer people figures heavily in their solution to the earth’s supposed problems. If men and women cannot get together as easily as before, they are likely to breed fewer children, something fervently to be wished for, at least in this quarter.
We do not at this time contend that these groups have been active in promoting the anti-sexual-harassment agenda. This may indeed be the case. We only maintain that this is a likely avenue for future research into the question of who supports such legislation.
We conclude, given the foregoing, that sexual harassment law is unjust, and ought to be repealed. We maintain that quid pro quo is part and parcel of economic freedom, and that this has value both instrumentally in creating a prosperous economy, and intrinsically, for its own sake.182 In our view, the market can eliminate a hostile work environment—where there is an economic need for this—far more effectively and justly than can government.
_____________________
Roy Whitehead, Jr. and Walter Block, Journal of Law and Family Studies 4, no. 2 (2002): 229–263.
1 42 U.S.C. § 2000 (e) to 2000 (e) (17) (1982) (amended by the Act of 1991).
2 42 U.S.C.A., § 1981(a)(1) (2001).
3 42 U.S.C.A., § 1981 (b)(3) (2001).
4 Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991) and Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993).
5 Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998).
6 29 C.F.R. § 1604.11(a)(1)(2001).
7 Id. at 1604.11(a)(2).
8 Id. at 1604.11(a)3).11
9 Id.
10 Ellison v. Brady, 924 F.2d 872, 874 (9th Cir. 1991).
11 Lipsett v. University of Puerto Rico, 864 F. 2d 881, 901 (1st Cir. 1988).
12 Jones v. Wesco Investments, 846 F.2d 1154, 1155 (8th Cir. 1988).
13 Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1494 (M.D. Fla. 1991).
14 Ellison v. Brady, 924 F.2d 872, 874 (9th Cir. 1991).
15 Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
16 29 C.F.R. § 1604.11(b)(2001).
17 See, e.g., Roy Whitehead, Pam Spikes, and Brenda Yelvington, “Sexual Harassment in the Office,” The CPA Journal (February 1996): 42–45.
58 Hall v. Gus Construction Company, 842 F.2d 1010 (8th Cir. 1988).
19 Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986).
20 Jones v. Flagship International, 793 F.2d 714, 721–22 (5th Cir. 1986).
21 Carrero V. N.Y. Housing Authority, 890 F.2d 569, 579 (2d Cir. 1989).
22 Kotcher v. Rosa and Sullivan Appliance, 957 F.2d 59, 62 (2d Cir. 1992).
23 Kaufman v. Applied Signal, 970 F.2d 178, 185 (6th Cir. 1992).
24 Jones v. Wesco Investments, 846 F.2d 11561, 1 166 (8th Cir. 1988).
25 See Hall v. Gus Construction Company, 842 F.2d 1010, 1013–14 (8th Cir. 1988).
26 Meritor Savings Bank v. Vinson, 477 U.S. 57, 67–68 (1986).
27 Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991).
28 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
29 Id. at 68.
30 Id. at 60.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id. at 60.
36 Id. at 72.
37 Id. at 68.
38 Id. at 72.
39 Id. at 68.
40 Ellison v. Brady, 924 F.2d 842, 873–74 (9th Cir. 1991).
41 Moylan v. Manes County, 792 F.2d 746, 749 (8th Cir. 1986). For a discussion of the term “unwelcome” see Swentek v. U.S. Air, Inc., 830 F.2d 552, 557 (4th Cir. 1987).
42 Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).
43 Meritor, 477 U.S. at 68–69.
44 Bums v. McGregor, 989 F.2d. 959, 963 (8th Cir. 1993).
45 Id.
46 Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).
47 Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991).
48 Id.
49 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
50 Id. at 20.
51 Id. at 19.
52 Id.
53 Id.
54 Id.
55 Id.
56 Id.
57 Id. at 21–22.
58 Id. at 22.
59 Id.
60 Several Navy officers, concerned about Congresswoman Pat Schroeder’s role in the investigation of the “Tail Hook” Sexual Harassment incident, displayed a banner at an on base party that said, “Hickory Dickory Dock, Pat Schroeder can suck my cock.” See Eugene Volkh, “Freedom of Speech and Workplace Harassment,” UCLA Law Review 39 (1992): 1791, 1802 n. 54.
61 Complaint regarding a painting, hanging in the City Hall of Murfreesboro, Tennessee, that showed a woman with one breast exposed. Jennifer Goode, “It’s Art vs. Sexual Harassment,” The Tennessean, March 1, 1996, at A1.
62 See Robinson v. Jacksonville Shipyards Inc., 760 F.Supp. 1486, 1493 (M.D. Fla. 1991), a case that imposed liability for centerfolds.
63 Bartlett v. United States, 835 F.Supp. 1246, 1256 (E.D. Wash. 1993).
64 Intlekofer v. Turnage, 973 F.2d 773, 775 (9th Cir. 1992) (relying in part on a telephone call at home from a co-worker to support a hostile environment claim).
65 Morgan v. Hertz Corp.,542F. Supp. 123, 128 (W.D. Tenn. 1981), aff’d 725 F.2d 1070 (6th Cir. 1984) (condemning remarks like, “Did you get any over the weekend”).
66 See, e.g., Eugene Volokh, “What Speech Does ‘Hostile Work Environment’ Harassment Restrict?” Georgetown Law Journal 85 (1997): 627, 635.
67 See, e.g., Mark I. Schickman, “Sexual Harassment: The Employer Role In Prevention,” Compleat Lawyer 13 (1996): 24, 24–25.
68 See Volokh, note 68.
69 See Volokh, note 62.
70 Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
71 524 U.S. 775 (1998).
72 Id. at 780.
73 Id.
74 Id.
75 Id. at 780.
76 Id.
77 Id. at 782.
78 Id. at 783.
79 Id. at 784.
80 Id. at 808.
81 Id.
82 Id.
83 Id. at 807.
84 Webster’s College Dictionary (1973).
85 524 U.S. at 790.
86 Id. at 790–91.
87 Id. at 804–5.
88 Id. at 802.
89 Id. at 807.
90 Id.
91 Id.
92 Id.
93 Id.
94 Id. at 807–8.
95 Id. at 808.
96 Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
97 Id. at 747.
98 Id.
99 Id. at 747–48.
100 Id. at 748.
101 Id.
102 Id.
103 Id. at 765.
104 Id.
105 Id.
106 Id. at 766.
107 Faragher, 524 U.S. at 807.
108 Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).
109 See generally Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
110 Roy Whitehead and Kenneth Griffin, “The Supreme Court Finally Lays Down The Law On Employer Liability For Sexual Harassment,” The CPA Journal (November 1998): 70–71.
111 See, e.g., Meritor Savings Bank v. Vinson, 447 U.S. 57, 72–73 (1986), Barrett v. Omaha National Bank, 26 F.2d 424, 427 (8th Cir. 1984), and Roy Whitehead, Pam Spikes, and Brenda Yelvington, “Sexual Harassment In The Office,” The CPA Journal (February 1996): 45–49.
112 See Roy Whitehead, Kenneth Griffin, and Pam Spikes, “Preparing For Same Sex Sexual Harassment,” The CPA Journal (June 1998): 54–55.
113 29 C.F.R. 1604.11(0) (2001).
114 See Meritor, 477 U.S. at 73.
115 29 C.F.R. 1604.11(d) (2001).
116 726 F.2d 424, 427; see also Nash v. Electrospace System, 9 F.3d 401, 404 (5th Cir. 1993).
118 Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983).
119 Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991).
120 For simplicity, we have been speaking as if all victims are female and all harassers male. Actually both roles can be filled by either gender. See generally Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) (male victim) and Kinman v. Omaha Public School District, 94 F.3d 463 (8th Cir. 1996) (female harasser).
121 See Jean O. Hughes and Bernie R. Sandler, “In Case of Sexual Harassment, A Guide for Women Students,” in The Project on the Status and Education of Women (Washington, D.C.: Association of American Colleges, 1986).
122 See generally Barrett v. Omaha National Bank, 726 F.2d 424 (8th Cir. 184).
123 See generally Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
124 See generally Ellison, 924 F.2d 872.
125 Id.
126 Harris v. Forklift Systems, 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring) (internal quotation marks omitted).
127 See generally Murray N. Rothbard, For a New Liberty (New York: Macmillan, 1973); Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998); Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Dordrect, Holland: Kluwer Academic Publishers, 1989); Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Dordrect, Holland: Kluwer Academic Publishers, 1993); Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); Walter Block, Defending the Undefendable (San Francisco, Calif.: Fox and Wilkes, 1991); Walter Block, “Libertarianism vs. Libertinism,” Journal of Libertarian Studies 11 (1994): 117; Charles Murray, What it Means to be a Libertarian (New York: Broadway Books, 1997); Jan Narveson, The Libertarian Idea (Philadelphia, Penn.:Temple University Press, 1988); J. Patrick O’Brien and Dennis O. Olson, “The Great Alaskan Money Give Away Program,” Economic Inquiry 18 (1990): 604; Jerry W. Dauterive, William Barnett, and Everett White, “A Taxonomy of Government Intervention,” Journal of Southwest Society of Economics 12 (1985).
128 We will continue to speak as if only males can commit such acts, and only women can be victimized by them. Obviously, while these two categories may be the most statistically significant, they certainly do not exhaust the four different possibilities.
129 For the implications of this viewpoint on abortion law, see generally Walter Block, “Abortion, Woman and Fetus: Rights in Conflict?” Reason (April 1978), pp. 18–25; Walter Block, Compromising the Uncompromisable: A Private Property Rights Theory of Abortion (manuscript on file with author); Walter Block, Libertarianism, Positive Obligations, and Property Abandonment: Children’s Rights (manuscript on file with author).
130 On this point, esteemed legal scholars Professors Prosser and Keeton explain that “the plaintiff is entitled to demand that the defendant refrain from the offensive touching, although the contact results in no visible injury,” and “the defendant may be liable when intending only a joke, or even a compliment, as where an unappreciated kiss is bestowed without consent (citations omitted).” See W.P. Prosser et al., Prosser and Keaton on the Law of Torts, Section 9 (Los Angeles: West Group, 1984).
131 Suppose there were a private amusement facility called “Murder Park.” Here, each customer would be issued a revolver with six bullets, and told to have at anyone else in the arena (surrounded by tall, thick walls so that the mayhem would be confined to the premises) who was there for that purpose. There would be a ceasefire for 10 minutes every hour so that the dead bodies could be hauled away, and the remaining combatants issued new ammunition. Such an establishment would not at all violate laws against murder, for that crime is the killing of people against their will. Here, on the contrary, all customers by purchasing a ticket demonstrate that they are engaging in the otherwise murderous interaction on a voluntary basis.
132 This is the very felicitous phrase of Robert Nozick. See Nozick, Anarchy, State, and Utopia.
133 This applies to every county in the state of Nevada apart from Clark County. See Nev. Rev. Stat. 201.300 (1998).
134 Of course, if this is to be a licit commercial arrangement, there can be no fraud. That is, the employer must be crystal clear as to the contents of the contract. Without a meeting of the minds over the specifics, any demands for sex as part of the job description would be fraudulent.
135 For a critique of the status quo ante on blackmail, see Eric Mack, “In Defense of Blackmail,” Philosophical Studies 41 (1982): 274; Murray N. Rothbard, Man, Economy, and State (Auburn, Ala.: The Mises Institute, 1993), p. 443, n.49; Walter Block, “The Blackmailer as Hero,” The Libertarian Forum 4, no. 12 (December 1972): 1; Walter Block, Defending the Undefendable (San Francisco, Calif.: Fox and Wilkes, 1999), p. 44–49; Walter Block and David Gordon, “Extortion and the Exercise of Free Speech Rights: A Reply to Posner, Epstein, Nozick, and Lindgren,” Loyola Los Angeles Law Review 19, no. 1 (1985): 37; Walter Block, “Trading Money for Silence,” University of Hawaii Law Review 8 (1986): 57; Walter Block, “The Case for De-Criminalizing Blackmail: A Reply to Lindgren and Campbell,” Washington University of St. Louis Law Review 24 (1997): 225; Walter Block, “A Libertarian Theory of Blackmail,” Irish Jurist 33 (1998): 280; Walter Block and Robert W. McGee, “Blackmail from A to Z,” Mercer Law Review 50 (1999): 569.
136 There is a parallel between this phenomenon and blackmail, which also combines two acts, each of which is legal in isolation (e.g., asking for money, threatening to tell about an embarrassing secret) but prohibited by law when combined. For support of the status quo on this law, see Peter Alldridge, “Attempted Murder of the Soul: Blackmail, Privacy, and Secrets,” Oxford Journal of legal Studies 13 (1993): 368; Scott Altman, “A Patchwork Theory of Blackmail,” University of Pennsylvania Law Review 141, no. 5 (May 1993): 1639; James Boyle, “A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading,” California Law Review 80 (1992): 1413; Jennifer Gerarda Brown, “Blackmail as Private Justice,” University of Pennsylvania Law Review 141, no. 5 (May 1993): 1935; Debra J. Campbell, “Why Blackmail Should be Criminalized: A Reply to Walter Block and David Gordon,” Loyola Los Angeles Law Review 21 (1988): 883; Ronald Coase, “The 1987 McCorkle Lecture: Blackmail,” Virginia Law Review 74 (1988): 655; George Daly and J. Fred Giertz, “Externalities, Extortion, and Efficiency: Reply,” American Economics Review 68, no. 4 (September 1978): 736; Sidney W. DeLong, “Blackmailers, Bribe Takers, and the Second Paradox,” University of Pennsylvania Law Review 141, no. 5 (May 1993): 1663.
137 But only as regards abortion. For a libertarian perspective on this issue, see note 130.
138 Rothbard (1998), pp. 129–30.
139 Or maybe not. The point is, no one can say anything for sure on this matter apart from noting that tastes will differ.
140 See note 2 and accompanying text.
141 29 C.F.R. §1604.11(a)(l) (2001).
142 Id. at §1604.11(a)(2).
143 Id. at §1604.11(a)(3).
144 If so, then so does a man; men and women have equal rights in the libertarian society.
145 Ellison v. Brady, 924 F.2d 872, 877 (9th Cir. 1991).
146 Lipsett v. University of Puerto Rico, 864 F.2d 881, 906 (1st Cir. 1988).
147 Jones v. Wesco Investments, 846 F.2d 1154, 1155 (8th Cir. 1988).
148 Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1494 (M.D. Fla. 1991).
149 Ellison v. Brady, 924 F.2d 872, 874–75 (9th Cir. 1991) at 151.
150 See on this Jerome H. Barkow, Leda Cosmides, and John Tooby, The Adapted Mend: Evolutionary Psychology and the Generation of Culture (Oxford: Oxford University Press, 1992); David M. Buss, The Evolution of Desire (New York: Basic Books, 1994); Richard Dawkins, The Selfish Gene (Oxford: Oxford University Press 1989); Robert H. Frank, Passion Within Reason: The Strategic Role of the Emotions (London: W.W. Norton, 1988); Mark Ridley, The Red Queen: Sex and the Evolution of Human Nature (New York: MacMillan, 1993); Donald Symons, The Evolution of Human Sexuality (Oxford: Oxford University Press, 1979); R. Trivers, Social Evolution Reading (Menlo Park, Calif.: Benjamin/Cummings Publishing, 1985); E. O. Wilson, Sociobiology: A New Synthesis (Cambridge, Mass.: Harvard University Press, 1975); Robert Wright, “Feminists, Meet Mr. Darwin,” New Republic 211 (1994): 34. Sociobiologically speaking, females are supposed to be flirtatious—males, pressing and persistent.
151 There is a wealth of anecdotal evidence attesting to male assertiveness and female reticence. Some of it is in the form of humor. According to one joke:
If a general says “yes,” he means “yes.” If he says “no,” he means “no.” If he says “maybe,” he is not a general. If a diplomat says “yes,” he means “maybe.” If he says “maybe,” he means “no.” If he says “no,” he is not a diplomat. If a girl (virgin) says “no,” it means “maybe.” If she says maybe, it means “yes.” If she says “yes,” she is not a girl (virgin).
And according to another bit of folk wisdom, when a woman says “No,” it means “Maybe”; when she says “Maybe,” it means “Yes.”
In sharp contrast, the feminists have launched a campaign around the motto “No means no.” We wonder what planet they are from, in terms of an understanding of human nature. Anyone who believes that every time a woman declines a man’s advances she is serious about it only evidences his ignorance of the human condition.
152 For a recent critique of the modem mores, and a defense of the more traditional ones, see Danielle Crittenden, What our Mothers Didn’t Tell Us (New York: Simon and Schuster, 1998); Richard Dooling, Blue Streak: Swearing, Free Speech, and Sexual Harassment (New York: Random House 1996); Ellen Fein and Sherrie Schneider, The Rules: Time-Tested Secrets for Capturing the Heart of Mr. Right (New York: Warner Books, 1996).
153 The case for privatizing the post office is offered by Douglas K. Adie, The Mail Monopoly: Analyzing Canadian Postal Service (Vancouver, British Columbia: The Fraser Institute, 1990); Douglas K. Adie, Monopoly Mail: Privatizing the United States Postal Service (New Brunswick, N.J.: Transaction Publishers, 1988); Douglas K. Adie, “Why Marginal Reform of the US. Postal Service Won’t Succeed,” in Free the Mail: Ending the Postal Monopoly, Peter J. Ferrara ed., (Washington, D.C.: The Cato Institute,1990); Thomas G. Moore, “The Federal Postal Monopoly: History, Rationale, and Future” in Free the Mail: Ending the Postal Monopoly; Stuart M. Butler, “Privatizing Parcel Mail,” Management 6 (1986); Stephen Moore, “Privatizing the US. Postal Service,” in Privatization: A Strategy for Taming the Federal Budget Fiscal Year 1988 (Washington, D.C.: Heritage Foundation, 1988).
154 See on this Walter Block, “Public Goods and Externalities: The Case of Roads,” Journal of Libertarian Studies 7 (1983): 1, 34; Walter Block, “Road Socialism,” International Journal of Value-Based Management 9 (1996): 195–207; Walter Block, “Theories of Highway Safety,” Transportation Research Record 912 (1983): 4; Walter Block, “Congestion and Road Pricing,” Journal of Libertarian Studies 4 (1980): 299; Walter Block, “Free Market Transportation: Denationalizing the Roads,” Journal of Libertarian Studies 3 (1979); 209; Michelle S. Cadin and Walter Block, “Privatize the Public Highway System,” The Freeman 47 (1977): 96; Gerald Gunderson, “Privatization and the 19th-Century Turnpike,” Cato Journal 9 (1989): 191; Daniel B. Klein, John Majewski, and Christopher Baer, “Responding to Relative Decline: The Plank Road Boom of Antebellum New York” Journal of Economic History 53 (1993): 106; Daniel B. Klein and G.J. Fielding, “Private Toll Roads: Learning from the Nineteenth Century,” Transportation Quarterly 46 (1992): 321; Daniel Klein and G.J. Fielding, “How to Franchise Highways,” Journal of Transport Economics and Policy 62 (1993): 113; Gabriel Roth, The Private Provision of Public Services in Developing Countries (Oxford University Press, 1987); Gabriel Roth, Paying for Roads: The Economics of Traffic Congestion (Harmondsworth, England: Penguin 1967); Murray N. Rothbard, For a New Liberty; William C. Woolridge, Uncle Sam, the Monopoly Man (New Rochelle, N.Y.: Arlington House, 1970).
155 Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
156 For the purpose of this analysis, we assume that anything worse, e.g., from slight to heavy physical abuse to actual rape, does not exist; such acts are dealt with by the forces of law and order, not by ordinary businesses on the shop floor.
157 See, e.g., Morgan O. Reynolds, Economics of Labor (Cincinnati, Ohio: South-Western, 1995).
158 A significant part of the reason a Michael Jordan or a Kobe Bryant is so productive in basketball is not due entirely to their own points, rebounds, or steals total, but because they also made their teammates into better players. This phenomenon is hardly confined to that particular sport, or, indeed, to the realm of athletics in general.
159 This is because we have argued that women have a right not to niceness but only to security of their persons.
160 See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Kathryn Sutherland, ed. (Oxford: Oxford University Press,1993). For a critique from the free-enterprise perspective, see Murray N. Rothbard, The Logic of Action: Method, Money, and the Austrian School (Cheltenham, U.K.: Edward Elgar, 1997).
161 We assume away, for argument’s sake, the claim that, although crude and unwelcome, wolf whistles are not per se rights violative, and do sometimes serve their purpose of allowing men to introduce themselves to women. That is, we temporarily adopt the leftist perspective that to see a woman as a sexual object is to commit in effect an assault upon her.
162 See Gene Callahan, Economics for Real People (Auburn, Ala.: Ludwig von Mises Institute, 2001) or any other introduction to microeconomics or public finance on this matter. That is, in the view of most practitioners of the dismal science, the economics of discrimination as depicted above accurately describes intra-firm activity, but not that which occurs inter-firm.
163 For a critique of the “externalities as market failure” literature, see Hans-Hermann Hoppe, “Fallacies of the Public Goods Theory and the Production of Security,” Economics and Ethics of Private Property; Jeffrey Hummel, “National Goods vs. Public Goods: Defense, Disarmament, and Free Riders,” Review of Austrian Economics 4 (1990): 88; Walter Block, “Public Goods and Externalities: The Case of Roads,” Journal of Libertarian Studies 4 (1983): 1.
164 See note 155.
165 For critiques, see Walter E. Williams and Walter Block, “Male-Female Earnings Differentials: A Critical Reappraisal,” Journal of Labor Research 2, no. 2 (1981): 385; Discrimination, Affirmative Action, and Equal Opportunity (Vancouver, British Columbia: The Fraser Institute, 1982).
166 There is a slight misanalogy here, in that in the case described in the text, there is mutual hatred and abuse emanating from both groups, while in sexual harassment one category of people are the harassors, and the other, the harassees. For Ronald H. Coase, however, this would be a valid analogy, in that in order to stop the harassors from victimizing the harassees, one would have to bring discomfort to the former. See “The Problem of Social Cost,” Journal of Labor Economics 3 (1960): 1. That is, for Coase, there can be no such thing as harassment: all such interactions are reciprocal.
For critics of Coase, see Walter Block, “Ethics, Efficiency, Coasian Property Rights, and Psychic Income: A Reply to Harold Demsetz,” Review of Austrian Economics 8 (1995): 61; Walter Block, “O.J.’s Defense: A Reductio Ad Absurdum of the Economics of Ronald Coase and Richard Posner,” European Journal of Law and Economics 3 (1996): 265–86; Roy E. Cordato, “Subjective Value, Time Passage, and the Economics of Harmful Effects,” Hamline Law Review 12 (1989): 229; Elisabeth Krecke, “Law and the Market Order: An Austrian Critique of the Economic Analysis of Law,” in Commentaries on Law and Economics, Robert W. McGee, ed. (South Orange, NJ: Dumont Institute for Public Policy Research, 1977), p. 86; Gary North, The Coase Theorem (Stone Mountain, Georgia: Publisher Services, 1992); Murray N. Rothbard, “Law, Property Rights, and Air Pollution,” in Economics and the Environment: A Reconciliation, Walter E. Block ed. (Vancouver, British Columbia: The Fraser Institute, 1990), p. 233.
167 Since January 1, 1998, California has banned smoking in virtually all indoor public places including bars. See Ted Reuter, “California Living: Snuff Out that Cigarette, Please,” Christian Science Monitor, January 12, 1998.
168 See Walter Block, “Tobacco Advertising,” International Journal of Value-Based Management 10 (1997): 3, 221–35.
169 See Gary Becker, Human Capital (Washington, D.C.: The National Bureau of Economic Research, 1964).
170 See Gary Becker, The Economics of Discrimination (Chicago: The University of Chicago Press, 1957).
171 This is the felicitous title of a book by Milton and Rose Friedman. See Milton and Rose Friedman, Free to Choose (New York: Harcourt Brace Jovanovich, 1980).
172 C.F.R. §1604.11(d) (2001).
173 Assume there is no insurance policy in effect.
174 A counter argument is that the employer was causally related to the accident, and therefore at least in part responsible for it, in that had he not hired this particular driver, it would not have occurred. This is subject to the reductio ad absurdum response that there are many other people also causally responsible for the accident, and it would be highly unjust to make them pay for it. For example, the accident would not have occurred had not the driver been able to buy clothes, and food; had the car or road not been built in the first place. Thus, we can also implicate in this accident those who mined the iron necessary to construct the bus.
175 Murray N. Rothbard, “Law, Property Rights, and Air Pollution.”
176 Id. at 247.
177 Id.
178 See note 20.
179 This is the methodology employed by Elvis Cole and all other great detectives. See Robert Crais, Sunset Express (New York: Hyperion, 1996). Apart from means and opportunity, the motive for the crime is often the best way to discern the identity of the criminal.
180 See Michael Levin, Feminism and Freedom (New York: Transaction Books, 1987); Michael Levin, “Comparable Worth: The Feminist Road to Socialism,” Commentary (September 1984): 39.
181 See Paul R. Ehrlich, The Population Bomb (New York: Ballantine, 1968); Paul R. Herlich and Anne H. Ehrlich, The Population Explosion (New York: Simon and Schuster, 1990); David Foreman, “Only Man’s Presence Can Save Nature,” Harpers (April 1990); Al Gore, Earth in the Balance: Ecology and the Human Spirit (Boston: Houghton-Mifflin, 1992).
For rejoinders, see Daniel Coffey and Walter Block, “Postponing Armageddon: Why Population Growth Isn’t Out of Control,” Humanomics 15 (1999): 66; Julian Simon, The Ultimate Resource (Princeton, N.J.: Princeton University Press 1981); David Friedman, Laissez faire in Population: The Least Bad Solution (Population Council 1972); Peter T. Bauer, “Population Scares,” Commentary, (November 1987): 39.
182 See James Gwartney, Robert Lawson, and Walter Block, Economic Freedom of the World, 1975–1995 (Vancouver, British Columbia: The Fraser Institute, 1996).