Workplace relationships are a big part of most people’s lives. Many of us spend more time with our coworkers than our families, and our relationships with our coworkers have a significant impact on our well being. For this reason, many liberals argue that permanent employment contracts (e.g. ‘slave contracts’) are impermissible because they don’t leave employees with good exit options. The thought is that employees should always have the freedom to exit a contract at will.
It’s then striking that many liberals change their tune when we consider the employer’s freedom to end an employment relationship. Unlike the rights of employees, some allege that employers should be forbidden from ‘firing at will,’ and that unions and policymakers ought to protect employees’ ‘right to stable employment.’ Most recently, here’s Chris Bertram on this point:
The issue seems to me to be emblematic of what’s wrong with the BHL people. They can’t and don’t take seriously the realities of private power, of domination, and of the need for someone (the state or the unions or both) to step in and protect people who have nothing against those who believe they are entitled to do what they want on their private domain. In an unequal world, where access to employment is in the hands of the few, then it is certain that at least some of the few will take advantage of their position to abuse and humiliate their subordinates in various ways, including sexually.
Bertram anticipates my reply, which is that a UBI will at least give people the option to leave a job without falling into desperate poverty. His response?
Whatever…Even in a world with a social minimum there will be people who get themselves into situations of neediness or dependence through bad choices or bad luck….Providing people with protection against getting fired for arbitrary reasons isn’t an unwarranted interference with freedom of contract, it is essential to protecting people from humiliating and degrading bargains, or agreeing to lengthy stretches of unpaid overtime, or any of the other things that unequal power can force upon them.
I agree that bosses should not demand that employees work for lengthy unpaid overtime when that was not specified as part of the job at the outset. But say it was. Imagine a recent graduate who wins a prestigious hourly internship at a literary magazine, but the job requires that she also manages the magazines social media accounts 24/7 and be ‘on call’ for the staff writers. Is unpaid overtime problematic in this case?
Similarly, it’s obviously wrong in most cases to tell an employee that she must preform sexual favors in order to keep her job, but maybe not for an employee whose job already includes other kinds of sex work. The point is that where contracts are incomplete, there is usually an implicit or explicit understanding about the nature of a job, which either does or does not include sex or overtime.
As I argued before, violating these implicit understandings is wrong because it is deceptive to lead someone to believe that a job requires one thing and then to demand another. This deception can be particularly harmful when an employee wouldn’t have taken the job if she knew what she’d be asked to do. This is why the nature of the work should be specified in contracts as much as possible. Absent any contracts or agreements, if an employee is surprised to find that her job requires things she did not anticipate, then of course she should be free to leave the job.
So far, we all agree then that sexual harassment is wrong. Does the wrongness of this behavior mean that we should abandon at-will employment? Here is where we part ways. Bertram says that this issue is ‘emblematic’ of what’s wrong with BHL. I think it’s emblematic of what’s wrong with non-BHL liberals. Why is their immediate impulse to limit an employer’s options? Why is it so important that employees have the freedom to exit an employment relationship, but liberals like Bertram and Corey Robin don’t seem to worry at all about the employer’s freedom? Why not spend some time thinking of solutions that are compatible with liberty, instead of assuming that employers’ rights don’t matter?
Consider an analogy to marriage. In Ibsen’s A Doll’s House, Nora is a wife who works at home raising a family. She is financially dependent on her husband Torvald. At the end of the play, Nora leaves Torvald and her children to live independently, though this choice means that she will be poor and stigmatized. Surely Nora shouldn’t have been required to stay married to Torvald, even if it was morally impermissible for her to leave her family. Similarly, if Torvald wanted to leave Nora he ought to have been legally permitted to, even if his choice would have been wrong, even if he left Nora poor and stigmatized.
The freedom to choose a spouse is so important that both spouses ought to be legally permitted to leave marriages at will. This freedom merits legal protection even when the initial terms of a marriage agreement were vague, even when the relationship is characterized by social and economic inequalities, and even when it’s wrong to leave.
Employment relationships are relevantly similar. Like marriage, our identities are shaped by our relationships at work, and work matters a lot for our happiness. Work can be a central life project. For these reasons, both employers’ and employees’ rights are important. Wherever possible, we should look for ways to mitigate the wrong of sexual harassment or burdensome labor practices without limiting economic liberty.
For example, a UBI would discourage employers from behaving badly, and give employees better options when their employers act wrongly. Second, states should take sexual violence and assault seriously in all cases, and everyone should feel confident that the police and courts will fully investigate and prosecute all cases of rape or attempted rape. Third, I think that justice requires open borders, and that a better immigration policy would protect the farmworkers that Bertram mentions in his post more than workplace regulations or unions.
Fourth, government can play a role as a ‘knower organization’ in promoting informed employee and employer choice by maintaining public records of complaints. We already have private knower organizations for employees and employers, why not extend these ratings to other employment contracts with the same kind of consumer database that the CPSC is developing for products? Employers would have incentives to treat their employees well to gain the best employees and to maintain a good pubic image, and employees and managers would have access to information about their workplace. Finally, obviously deceptive hiring practices could be addressed in the courts as a kind of fraud or breach of contract.
None of these policy changes involve trampling on people’s freedom. All of them require significant revision of the status quo, and stand to benefit employees. Why is the initial impulse for Bertram and Robin to limit liberty of contract, rather than to think about solutions that are compatible with employers rights? Surely something important is lost with limits on freedom of contract and freedom of association, so if limits are not essential to protect people from indecent proposals, then why not advocate first for those solutions?
PS: Matt Zwolinski has a paper about discrimination, which also raises the question of why commercial relationships should be treated differently from private relationships.
Update: Just to clarify the takeaway- I agree that sexual harassment is wrong (I hope we all do) and also that it there can be a role for government (e.g. legal penalties for fraud and sexual violence). The point is just that limits on employer’s rights to fire people shouldn’t be our first instinct, because something is lost when the government restricts economic liberty.