Sexual Harassment in the Workplace
The authors abhor and detest real (as defined by us) sexual harassment because it is personally and professionally destructive. (Similarly, we personally loathe prostitution, addictive drugs, and cigarette smoking. However, as libertarians, we advocate the legalization of all such despicable but victimless crimes.) We write that the current mish mash of EEOC regulations, laws, and court cases is itself vague, confusing, unjust, and ought to be repealed. We suggest a libertarian property values approach to resolving the problem.
The chapter commences with a discussion of the current sexual harassment law with a focus on what sexual harassment looks like, the quid pro quo and hostile environment doctrines, the recent supervisor liability guidance from the Supreme Court, and our concerns about the vagueness and First Amendment issues that arise in the context of the claims. We cite Justice Ginsberg’s comment in Harris that “women should not have to put up with what is offensive to men.” We also discuss Justice O’Connor’s powerful description of sexual harassment as occurring “when the woman cannot focus on her job.” After all, what sane employer does not want the employees to focus on the job at hand?
We then turn to a philosophical discussion of the entire enterprise of sexual harassment.
We do so from a classical liberal perspective, one based on private property rights, contract, free association, and free speech rights. We believe that the law should prohibit those acts which violate the rights of people to the sanctity of their persons and justly owned property. Sometimes the current law recognizes this. Sometimes it does not! We conduct a critique of the mainstream sexual harassment law. We conclude that the current sexual harassment law is unjust and ought to be repealed. We contend that the elimination of much of abhorrent sexual harassment is something that the market can and will do, because there is an economic need to do so. We contend that the market can operate in this regard much more effectively and justly than government. Why? Because it is in the employer’s selfish interest to do so!