Professor John Palmer has a helpful comment on one of the many cases when special privileges are not to the benefit of the allegedly privileged persons.
Western Europeans are finding out that the privilege of being difficult to fire has a major downside, which is that you’re less likely to be hired, as well. (Olaf Gersemann’s book Cowboy Capitalism has the data on the problems of long-term unemployment in Europe.)
Certain “gender feminists” (Catherine MacKinnon, for example) have also made the case that women should not be held to contractual obligations in the same way as men, since women are easily bullied and always say yes when contractual obligations are offered to them. I’ve never gotten a good response from one when I’ve pointed out that to say that women should not be held to the contracts they’ve made is the same thing as saying that women should not be able to make contracts, and that that would mean that women would not be able to obtain loans, buy mortgaged houses, etc. The privilege of not being held to one’s contractual obligations is the same as the disability of not being able to make contracts.
In cases involving women, the law could presume that women in particular situations should not be held to certain obligations within a contract if it can be shown that there is an inequality of bargaining power. I can think of two different instances ���¯���¿���½ first, where women per se are protected and second, where women are protected by way of indirect effect.
For example, where a working husband and housewife in their late forties jointly own the matrimonial house and the husband pressurises the wife to sign over her interest to a bank for whatever reason. In many instances, a housewife places her trust and confidence in her husband in relation to her financial affairs and sexual and emotional ties provide a ready weapon for undue influence.
It is then proper to argue that there is a presumption of undue influence that the wife should not be held to the agreement. This could be rebutted, for example, by showing the wife had independent legal advice, but the starting point would be to address the inequalities of bargaining power within the agreement.
The second instance is where women are treated unfairly indirectly. For example, contract terms relating to part-time work are more likely to affect women than men as women are more likely to work part-time. Here, the law might not prevent women from forming contracts but would not give effect to particular contractual terms, for example, a contractual term of an employment contract waiving an employeeÃ?Â?Ã?¯Ã?Â?Ã?¿Ã?Â?Ã?½s right to sue their employer for personal injuries sustained whilst at work, or a contractual term waiving an employee’Ã?Â?Ã?¯Ã?Â?Ã?¿Ã?Â?Ã?½s right not to suffer sexual discrimination by means of sexual abuse, for example, allowing the manager to refer to women by the name Ã?Â?Ã?¯Ã?Â?Ã?¿Ã?Â?Ã?½Big TitsÃ?Â?Ã?¯Ã?Â?Ã?¿Ã?Â?Ã?½ or posting pictures of naked women posters in an office.
Women can then enter into contracts but courts would be more vigilant to strike down specific terms which were unconscionably unfair as a result of a significant imbalance in bargaining power.
Well, yes, to the extent that contracts with women could not be enforced, rational people would stop making contracts with women, so that, effectively, women would no longer be able to make contracts.
But presumably the MacKinnon’s of the world would “get around” this difficulty simply by making it illegal to discriminate against women in the making of contracts.
Combine that with the doctrine that any statistical imbalance is proof of discrimination, and about 51% of all contracts of the relevant type would henceforth be unenforceable.
In principle, this would not not be all that different from (1) requiring employers to bear various costs associated with an employee’s pregnancy and (2) simultaneously forbidding them to discriminate against women of child-bearing age when hiring.
A court failing to enforce a contractual term in a part-timer’s employment contract that they could not sue their employer for personal injuries sustained during work would have no impact on an employer’s need/demand for employees.
No employer would stop entering into contracts with part-time workers because of such an estoppel.
Vota Nointe: Do I understand your second case correctly?
Suppose I’m a blue-collar kinda guy running my own plumbing service. I keep a Penthouse centerfolds calendar on the wall by my desk. I like it and I don’t want to take it down.
So when I advertise for a part-time assistant and a woman applies, I say “fine, but only if you agree not to try to make me take down my centerfold calendar. ‘Cause I like it.”
She agrees. I hire her. Then she sues me, and the law refuses to give effect to her previous agreement – apparently, because women are more likely then men to work part time.
If that’s how the law works here, wouldn’t that simply make it rational for me to discriminate against women when hiring?
This is a remarkably interesting and nuanced discussion. Thank you, Vota Nointe and Vinteuil.
Vota Nointe writes, “A court failing to enforce a contractual term in a part-timer’s employment contract that they could not sue their employer for personal injuries sustained during work would have no impact on an employer’s need/demand for employees.” I wonder, first, whether such failure to enforce might change the relative attractiveness of full-timers relative to part-timers and whether it might make employment of machinery relatively more attractive than employment of part-time employees. Second, if the failure to enforce were distinguished by gender, would that make members of the “more protected” gender less attractive as employees relative to those “less protected”?
Your example is correct and in Europe, car garages are no longer permitted to display the Pirelli calendars showing women’s breasts.
Such behaviour affected women predominately because they were, and unlikely, to occupy managerial positions from where they could prevent such behaviour or, alternatively, put up posters displaying a man’s exposed, or even erect, penis.
In the case of Robinson v Jacksonville Shipyards DC Fla 1991 57 FEP Cases 971, the District Court ruled that the ‘sexualisation of the workplace imposes burdens on women that are not borne by men’ because it tends to make men view their female co-workers as sexual objects. When women are viewed in this manner, Judge Howell Melton reasoned, they are in effected treated differently because of their sex.
The judge concluded that “The presence of the pcitures, even if not directed at offending a particular female employee, sexualises the work environment to the detriment of all female employees’ and that ‘the sexualisation of the workplace imposes burdens on women that are not borne by men… The presence of pictures of nude women creates and contribues to a sexually hostile working environment.’
However, if an employer refused to hire women on such a basis then it is likely they could be found guilty of sexual discrimination in their hiring practises and fined. Threat of legal action would act as a powerful disincentive to discriminating against women in hiring practises.
This is likely to apply to a greater extent to large companies than smaller firms of under fifteen employees because of a more professional recruitment and workplace ethic. Nevertheless, behaviour of larger firms should eventually percolate down to smaller firms as societal assumptions about acceptable conduct changes.
A big problem with anti-discriminatory laws is that it’s somewhat brazen to assume that we are able to get into people’s minds and tell if they’re discriminating or not. It also supposes guilt where there might be none.
In response to Dr Palmer’s first point, “I wonder, first, whether such failure to enforce might change the relative attractiveness of full-timers relative to part-timers and whether it might make employment of machinery relatively more attractive than employment of part-time employees.”
Of course, this may depending upon marginal cost. I do not, and cannot, propose my thoughts as a perfect solution. In a world of limited resources and unintended consequences, one can only hope for a ‘best trade off’. The balance is the benefit in persons having access to courts for torts committed at work versus the reduced number of people employer.
In addition, this would be unlikely to apply to labour intensive work, for example, the service industry. A McDonald’s employee who was unable to contract out of suing his employer so that he was able to sue them in the courts when electrocuted due to the negligence of his employer would not result in McDonalds reducing the number of their employees.
In relation to the second point, “if the failure to enforce were distinguished by gender, would that make members of the “more protected” gender less attractive as employees relative to those “less protected”?”
Women would not be afford special treatment. Rather, part-time workers would be afforded certain protections. Although this would protect men and women equally, because women form the overwhelming bulk of part-time workers, the effect is, de facto, to assist women.
A big problem with anti-discriminatory laws is that it’s somewhat brazen to assume that we are able to get into people’s minds and tell if they’re discriminating or not. It also supposes guilt where there might be none.
Posted by: Nacim Bouchtia at January 9, 2005 01:36 PM
This is why we have courts, judges and juries. It is no more of a problem than determining if someone ‘intended’ to injure someone deliberately or whether it was an accident for the purpose of determining whether a defendant committed an assault.
Even if legal “protections” apply equally to men and women, they may still provide rational employers with reason to discriminate. My blue-collarish plumber guy, for example, would probably be right to expect more trouble over his calendar from women then from men.
Generally speaking, I think it’s a really bad idea to enact laws and policies that make discrimination rational.
Yes, but if there was legal sanction for discrimination, and that sanction was sufficiently onerous, for example a high financial penalty, then there it would be less rational for the employer to discriminate against women than take down the offending posters.
In any event, I would encourage Mr Vinteuil to consider that lack of regulation is also a form of discrimination – positive discrimination for men.
I shall try to develop the argument as follows:
Men tend to occupy positions of greater responsibility within the workforce. Less women than men occupy positions of managerial status. This has the effect that it is more often than not, men who make decisions as to hiring and workforce behaviour.
For example, the boardrooms are composed more from men than women. When considerations are made as to who should be promoted, a group of similarly socially stationed men will tend to promote those that resemble them.
In the absence of any laws preventing open advertisement of jobs and equal opportunities, it is more rational than not for these men to employ more men who resemble themselves. Therefore, not having employment protection laws renders discrimination to be more rational.
To quote Vinteuil’s last statement, “Generally speaking, I think it’s a really bad idea to enact laws and policies that make discrimination rational.”, if one agrees that women are usually discriminated against from the start for some of the reasons stated above, then it is the lack of regulation and not the promotion of regulation that makes discimination rational.
Let me be clear, I am not suggesting that regulations should -force- employers to hire women and thereby interfere with the detail of who is employed. What I am suggesting is that the regulations should set down the ‘rules of the game’ for the decision making of hiring.
This would mean that the law concerns itself not with who actually is hired but the method of decision making that leads to who is hired.
Vota Nointe: I agree that if one law makes discrimination rational, another law imposing sanctions for discrimination can restore balance. But I suspect we would disagree on whether eliminating Miss March from the wall is worth all this law mongering.
You write that “lack of regulation…makes discrimination rational.” For general metaphysical reasons, attributing causal powers to “lacks” or absences makes me a little queasy, but I would agree that various forms of discrimination can sometimes be rational in the absence of regulation.
I’m not sure about the particular example you cite, though. You write that, without regulation, “it is more rational than not for…men to employ more men who resemble themselves.”
Well, maybe, for some men some of the time. But in general? I don’t think so.
There are certainly guys out there who prefer the company of other men, not only socially, but on the job. But there are plenty of other guys who prefer the company of women, and/or who are viciously competitive rather than welcoming towards their male colleagues. I suspect that part of the reason why affirmative action is so popular with corporations is that it provides such guys with a politically correct tool with which to keep down the potential competition.
But here I speak only from personal experience. I cannot cite any “data.”
A most interesting and provocative exchange. I’d like to add a few points.
First, much of the current differences in employment patterns may be attributable, not to discrimination on the part of employers, but to the choices made by the employees. For example, women who leave the wage labor force for a period of years and then return have less experience and unsurprisingly earn less. Taking such factors into account goes a long way to explaining pay gaps and difference in advancement.
Second, limiting the options of contracting parties rarely is to the benefit of the persons whose choices are so limited. Sometimes, of course, such limits can be, just as an army’s burning of its bridges behind itself can strengthen the resolve of each member to achieve victory, thus making victory more likely. However, in most bargaining games the likelihood that limiting one’s options will be to one’s advantage depends on the existence of a condition of monopoly (one seller), monopsony (one buyer), or bilateral monopoly, in which neither buyer nor seller have the option to go to other buyers or sellers. In the kinds of situations that Vota Nointe describes, however, alternative providers of services certainly do exist, in the form of men (if the restrained — in the sense that they cannot make binding agreements — category is women), machines (if the restrained are employees), full-timers (if the restrained are part-timers), and so on. It is harder to see how having one’s options limited in such cases would be to the benefit of those whose contractual options are coercively limited.
Finally, my own personal experience and those I have learned from people I know (on which I would not build a large case, but such experiences bear some weight) has been that the fear of sexual harassment matters in cases of dismissal for cause has a negative effect on the propensity to hire women, who are more likely to be able to bring such cases. In one case, in which two-member teams had to work together monitoring equipment on-station late at night, the fact that a female team-member brought a very (very) costly harassment case (based on allegations of a “hotile work environment”) effectively ensured that no women would be hired for such jobs in future. Naturally, no policy to that effect was ever announced, but…it is my understanding that no women were hired for such positions and that it was understood why. There are plenty of incentives to avoid the kind of punishment for discrimination that Vota Nointe describes; they induce employers to find reasons for hiring or firing other than fear of lawsuits based on gender, race, or the like, which is almost certainly one of the factors driving the trend toward “credentialism,” i.e., the search for sets of “objective” reasons to justify those hiring and firing decisions that may be questioned by administrative agencies or by courts after the fact. Again, it is not clear that that is to the benefit of those who were ostensibly to be helped by the special protections.
People should have the right to discriminate against anyone for whatever reason. Freedom of association should be upheld for all.
I agree with Nacim. While this is an interesting discussion – “what would happen if”, I think such anti-discrimination laws are a bad idea. Maybe a male business owner, for whatever reason, prefers to have all male employees (there are conceivable situations where gender uniformity enhances morale: sports teams, for example. Or perhaps the owner is just misogynic). If he can’t run his business efficiently due to not hiring women, he will be outcompeted in the market. In the long run, the situation will tend towards efficiency, which is greatly helped by fairness.
But even if small amounts of discrimination persist, freedom of association should be preserved and such discrimination should not be forcibly eliminated. After all, it’s not government’s role to stop people from shooting themselves in the foot.
Nacim & Sam – I’m entirely in sympathy with each of you, but you’ve both got to understand: propositions like:
“Freedom of association should be upheld for all.”
and:
“…it’s not government’s role to stop people from shooting themselves in the foot…”
are not intuitively obvious to everyone – or even most people.
More’s the pity. Winning this argument may be harder than you think.
As for TGP’s comment – I am in the rare position of finding myself with nothing to criticize – except that I’d like to hear more about the “credentialism” issue, which I think may be absolutely crucial here.
Tom (and everyone else!),
If you haven’t seen them, there are two great articles in the International Herald Tribune on this subject:
The Workplace: Firing’s easy in Denmark; so is hiring
http://www.iht.com/articles/2004/12/14/business/workcol15.html
Workers and bosses: Friends or foes?
http://www.iht.com/articles/2005/01/10/business/unions2.html
OK, so the second one isn’t so much on topic, but it’s still good reading, especially for someone like me who’s lived in France. 🙂
– Adam