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Spangler on Block on Sexual Harassment

My reply to Brad Spangler’s “You’ve got half your anarchy tied behind your back: Hey, libertarians! Politics makes you stupid,” which discusses Walter Block’s comments on sexual harassment and libertarianism.

Brad,

A few things. I’ll grant you I haven’t read all this closely, for a few reasons–namely, Tremblay is involved, and he’s impossible to take seriously. But as for criticism of Walter’s views on sexual harassment: let me note that Walter told me:

That passage about secretary pinching appeared in the very first edition (1976) of Defending the Undefendable. When this error of mine was pointed out to me, I immediately insisted that a new edition be published, and those words were deleted from it and all subsequent editions. Those erroneous words of mine were incompatible with the libertarian non aggression principle, and with everything else I have ever written about that subject.

Second, let me clarify that this whole debate is usually rife with confusion on the part of libertarians as to the libertarian nature of contracts and the nature of employment relationships, and fraud. People often talk about “the employment contract,” without knowing what they are talking about. There usually is no “employment contract” other than the obligation to pay money (salary) for services rendered/time put in. They often speak in a confused way about how it’s “fraud” if the boss starts harassing someone hired for a different purpose. This is all the result of confusion about the nature of fraud, property rights, the non-aggression principle, and contract. Thus one is reminded of Rothbard’s comment “It is no crime to be ignorant of economics, which is, after all, a specialized discipline and one that most people consider to be a “dismal science.” But it is totally irresponsible to have a loud and vociferous opinion on economic subjects while remaining in this state of ignorance.”

A contract is just transfer of title to property. People speak of “contracts” of employment far too loosely and imprecisely. The only “contract” that accompanies most employment relationships is the agreed-upon periodic transfer of employer-money if the employer performs certain services. That’s it. Now the employee usually works on the employer’s property, so the employer is giving the employee certain permissions (licenses) to use the employer’s property for certain purposes and in certain ways–to use the employer’s office building, computer, restrooms, etc.–until terminated.

Pinching is simply the use of someone’s body. Either it’s consented to, or it’s not. If it is, it’s not aggression. Period. If it’s not, it’s aggression.

Consent can be granted explicitly (say, in writing, or orally), or it can be implicit or tacit. It can be implied by the nature of the job, or context, for example. If a secretary consents, it’s not aggression. If she does not consent, it’s aggression. Whether she has consented is simply a factual question.

The point for our purposes is that there is nothing wrong with the boss in effect offering a hybrid job to a woman: since employment is at will, and she can be fired at any time for any reason, he can fire her and one second later, offer her a job back, but only if she agrees to the occasionally leer or fanny pat or even sex. If she refuses then, or later, to the sexual stuff, then he can terminate her, and this does not violate her rights. But if he gropers her after she has withdrawn consent, it’s battery, aggression.

So I think if you just keep a clear view of the nature of aggression and consent, this is not hard at all. Amateurs, statists, and unclear thinkers muddy the water, but it’s not difficult.

Sure, you can argue that the “default position,” especially for a secretary, is no pinching. The context and nature of the job of “secretary” implies that it’s not about sexual services, etc. Sure. That informs the question of whether consent was granted contextually or tacitly or implicitly, in the case of some kind of unwanted touching.

But as far as I can tell the point of Block’s original hypo (which I did not read in detail since it’s irrelevant) was to show that sexual harassment laws are illegitimate, which they are, since there are ways you can arrange the job so that it’s not aggression–a “hybrid” type of arrangement. Moreover, modern sexual harassment laws concern not only acts of aggression such as pinching, but firing someone on the grounds that they do not grant sexual favors–but such laws are not libertarian since it does not violate someone’s rights to fire them for any reason, so it cannot be a violation of rights to fire them on these grounds.

Someone posed to me this hypo:

I hire a secretary from California. She travels all the way to New Orleans to work for me. Whereupon I announce on her first day on the job that the job includes me pinching her. I think if I do that I’m guilty of fraud. I ought to be made to pay for her travel, relocation costs, at least.

I think this is a sloppy use of “fraud.” It’s not “fraud.” As for the payment of costs–I woud say this is part of an implicit contractual title transfer. But not fraud. I view fraud as a carefully defined concept that refers to obtaining possession of another’s property by some sort of deception or trick–theft by trick, in essence. Fraud, as a type of tort, cannot be retroactive. Either it is or is not fraud at the time of the act. So your later-pinching (or announcement about the change of the nature of the job) cannot go back in time and make previous acts fraudulent. And pinching is not fraud: it’s either aggression, or it’s not. It might trigger a contractual obligation on your part to refund her expenses, but that’s just a regular contractual title transfer–not fraud.

In sum: no one is entitled to a job; employment is at-will: you can quit any time, or be fired any time. So you are not entitled to a job offer, so a conditional one does not violate your rights: I offer you a job IF you will consent to my lechery, fondling, whatever. The candidate can accept or turn it down. Note that this is true even AFTER they start work for you, usually–since employment is at-will. So you can just fire her one second, and re-offer the job, with strings, the next second. Etc.

But, again, my friend asks:

I agree. Of course. However, you agreed with me that there was something untoward about making a woman an offer of a job as a secretary, she travels thousands of miles to get it, and then you announce the change in the job conditions. I think the woman has the right to expect that the default position is just the specifications discussed, say, on the phone interview: typing, filing, etc., but no sex.

My reply: Well, I think that she could bargain for a title transfer that says: IF you are messing with me, THEN you pay me $X. So it’s just a title transfer. And if this is not spelled out, it could be implied by context, custom, etc.

Suppose you make an offer and someone relocates to take the offer, and when they arrive you announce the terms are changed–what this simply means is you have fired the person and then offered to re-hire them on different terms. This does not violate anyone’s rights. It is possible of course that there was an implicit (or maybe explicit) accessory contractual term which said that IF you pull such shenanigans THEN you have to reimburse her costs and some damages–but again, this is purely a contract interpretation matter. I.e., it could be held that you have performed an action which triggers a contractual transfer of title. Laymen and mainstream lawyers would say you have breached the contract, but according to the Evers-Rothbard title transfer theory of contract, it’s more precise to say that you simply triggered an ancillary or accessory contractual title transfer.

Now all this assumes that this is the implicit agreement. But this means that the court finds this was the implicit agreement, as sort of a default rule, in the absence of an explicit agreement by the parties covering this situation. But parties who do not clearly specify how such situations are to be handled take a risk that the court might go against them in trying to figure out what the implicit contract is. So the court could go either way: the employee didn’t bargain for this title transfer, so it’s caveat employee. So, if they want this guarantee they can bargain for it. And of course, in a normal context if an employee asks the employer to agree to pay damages if the offer is revoked or substantially changed after the employee has incurred costs in reliance on the offer, the employer would have no reason not to agree to this since they do not intend to pull such shenanigans–and if they refuse to this term, that should alert the employee that trouble is brewing.

Left-libertarian talk about “hierarchies” and “state incorporation statutes” etc. do not change this fundamentally libertarian way of viewing sexual harassment.

For more discussion of these matters, see my article A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and my post The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression.

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