In his weekly back-and-forth with Gail Collins at The New York Times "Opinionator" blog this week, David Brooks finds a backhanded way to blame a woman for being forced out of a job by her supervisor's sexual advances. He doesn't seem to realize that his comment blames anyone who asks for compensation for an employer's negligence or harm:
David Brooks: Now we turn to ethical issues. My first question, and this is a genuine question, concerns the victims. Let's detach ourselves from the specifics of the Cain case and consider a general question: If you are the victim of sexual harassment, and you agree to remain silent in exchange for a five-figure payoff, should any moral taint attach to you? In the old days, somebody who allowed a predator to continue his hunting in exchange for money would certainly be considered a sinner. I'm reluctant to judge people in these circumstances, but I'm inclined to agree. Am I missing something?
Well, yes, he is missing something. Maybe Brooks is against all employment torts-all payouts when an employer's actions harm an employee's ability to make a living. If the company's negligence ended up with a shopworker losing his fingers to a table saw, would Brooks find it immoral for said shopworker to accept a year's salary to recuperate and find a new way of earning a living? What if the settlement included a gag clause, freeing the shopworker from being tainted as someone who sues employers? If so, Brooks should say so. Because the tort of sexual harassment, as I discussed here earlier this week, exists specifically because sexual harassment makes it harder for someone to earn a paycheck. So far, Herman Cain and the National Restaurant Association have not let us hear exactly what the victim says happened, although that might be coming out soon if this witness is to be believed. But here's the underlying principle: If a supervisor's repeated groping or advances or assaults drive you out of your job, should you pay by losing your income until you find a new job? Or should the employer that failed to rein in your supervisor pay for its lax employment practices?
In a private e-mail, one observer* explained it this way:
The thing that struck me about Brooks' comment is that he doesn't seem to appreciate market economics. The value of the tort of sexual harassment ... is that it goes directly at the employer, and holds the employer responsible for the behavior of supervisors. So a big judgment against a company for sexual harassment or hostile work environment is supposed to incentivize the company to either not hire those guys, or to enforce an environment where that stuff doesn't happen. And in Econ 101, it shouldn't make any difference whether the result is a judgment or a quiet settlement. The settlement, in theory, should equal the cost of the likely judgment, plus the reputational cost of a trial, divided by the likelihood of the complainant winning. And then, in theory, if the Restaurant Association had decided that having Herman Cain as president was worth, say, $500,000, but it turned out the cost of Herman Cain was $500,000 plus multiple $35,000 settlements every year, plus the risk of something bigger that might go to trial, they would either find a new president who cost them less, or get Herman Cain under control. The victim also has extraordinary incentives to not want to go to court, and to resolve the whole thing quickly and get on with her life, so she will also settle for much less than she might get if she pressed the complaint.
That doesn't always work, of course. For example, Herman Cain may have effective control of the board of directors, so they don't make the economically rational decision to dump him or supervise him. Or, there are all sorts of information asymmetries about the allegations. But as a free-market conservative, those are the issues Brooks should be thinking about.
More entertainingly, over at the Balloon Juice blog, Angry Black Lady found a 2009 Think Progress transcript of a David Brooks television appearance in which he discussed his own brush with politicians' sexual advances:
BROOKS: You know, all three of us spend a lot of time covering politicians and I don't know about you guys, but in my view, they're all emotional freaks of one sort or another. They're guaranteed to invade your personal space, touch you. I sat next to a Republican senator once at dinner and he had his hand on my inner thigh the whole time. I was like, ehh, get me out of here....
O'DONNELL: Sorry, who was that? BROOKS: I'm not telling you, I'm not telling you. But so, a lot of them spend so much time needing people's love and yet they are shooting upwards their whole life, they're not that great in normal human relationships. And so, they're like freaks, they don't know how to, they're lonely. They reach out. I've spoken to a lot of young women who are Senate staffers and they'll have these middle age guys who are sort of in the middle of a mid-life crisis. Emotionally needy, they don't know how to do it and sort of like these St. Bernards drooling everywhere. And you find a lot of this happens in mid-life and among very powerful people who are extremely lonely.
But here's what Angry Black Lady and David Brooks alike missed: These encounters are not parallel. What happened to Brooks was personally offensive, but it wasn't actionable grounds for a sexual-harassment complaint. He had the power to "out" the senator, if he wanted. He could have left the dinner party at anytime without consequences. He may have kept silent for any number of reasons: He believed the incident was too trivial to write about, or preferred not to be ground down by a scandal, or decided not to risk harming the Republican Party or his access to power brokers. But Brooks did not have to weigh his paycheck and his career against the daily dread of having his bodily privacy invaded, his integrity as a worker demeaned, or the risk of being assaulted if he ever wound up with his boss alone in an elevator or a car.
Amanda Marcotte wrote, again in a private e-mail, "Few people would claim to support no financial compensation for broken legs, burns, or death, but if you're raped [or, adds E.J., sexually assaulted], apparently wanting compensation is beyond the pale." So Brooks, what is it: Are you against all torts-or just those in which the harm is, specifically, sexual? If it's the latter, what is it about a sexual attack that is, for the victim, morally different from any other bodily or psychological injury?
*This observer gave me permission to use the words but preferred not to be named.
