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Tuesday, February 11, 2020

Why Legalizing Prostitution Would Legalize Sexual Harassment:

A Response to Jazz Shaw and His Followers

 So, today Jazz Shaw (whom I generally respect) posted a tweet that suggested that he supports the legalization of prostitution, as follows:

Then in turn, I pointed out that there was a serious downside to it.  I won’t quote myself in the name of keeping this blog reasonably family friendly, but the gist of what I said was as follows: “Right now, if an employer says to a woman ‘sleep with me or you’re fired,’ it’s illegal and sexual harassment. You make prostitution legal, you make that demand legal.”

(And if you really want to know what I originally said, you can follow this link.)

After Shaw called my comment “stupid,” all hell broke in my mentions.  Well, respectfully, people are not thinking it through.

Let’s start with something very basic.  What is described as “quid pro quo” sexual harassment (“sleep with me or you are fired”) is also solicitation of prostitution in most states.  I mean check your local laws, but if prostitution is defined in your local law as giving money or a thing of value for sex, then if a boss says to an employee, “sleep with me or I will fire you,” that is not only sexual harassment, it is solicitation of prostitution.

But, what I will also show is that the prohibition on it being prostitution is also critical to it being sexual harassment.

To understand why that is the case, you have to start by understanding that sexual harassment law is a creature of anti-discrimination law, not a regulation of the act of sex.

The best way to understand this is to deal with a hypothetical.  Imagine that a white boss had a black employee and the boss kept calling the employee racial slurs, kept leaving nooses at his desk, and made racist jokes all the time.  What do you call that?  Racial harassment.  Now, let’s suppose that a boss called a disabled employee, a cripple, etc., left threats around his desk about his disability, went on and on about Hitler had the right idea murdering disabled people as “useless eaters.”  What do you call that?  Disability harassment.  Now, say a male boss starts calling a female employee a b*tch, dumb broad, etc., tells her how much he would like to murder all women, and so on.  What do you call that?  Sexual harassment.

(Mind you, in all cases, the conduct would have to be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” so, bluntly, one racist, ablest, or sexist joke is not going to do it and I hope I conveyed a sufficiently pervasive situation in my hypotheticals.)

In other words, the word “sexual” in the term “sexual harassment,” is talking about gender, not the act of sex.  The idea, whether you are talking about racial harassment, disability harassment or sexual harassment is that you are singling out a person for mistreatment because of their race, their disability or their gender.  I will call all of this “bias harassment.”

Now, sexual harassment, unlike any other kind of bias harassment I can think of, has a special category called “quid pro quo” sexual harassment.  I mentioned it before, but if you are unaware of the term, quid pro quo is Latin for “something for something,” and it is describing a bargain or a deal.  For instance, if I buy a desk from you for $20, that is literally a quid pro quo.  Although people often ask if there is a quid pro quo in the context of illegal conduct, most quid pro quos are legal.  It’s typically legal to sell you a good or service for money or another thing of value, as long as the good or service is legal.  The problem with prostitution is the bargain or deal you are proposing—sex in exchange for money—is illegal.

So how is a quid pro quo for sexual acts, or proposing one, a form of harassment based on sex?  Well, because it is assumed that the person demanding sex has a preference between men and women.  That is, a man who asks a woman to have sex with him is not as likely to ask a man to have sex with him, and therefore he is discriminating between men and women.  Even bisexual persons typically have a preference: They might date men and women, but not in equal frequency.*

But here is the key.  Race, gender, disability and any other typically forbidden factor can be considered if it is what the law calls a bona fide occupational qualification.  This is often shortened to “BFOQ.”  Basically, the “occupational qualification” part is asking if it is part of the job, and they throw in the words “bona fide,” because they worry about the employer being full of it.

And that’s where the problem comes in.  If prostitution is legal, then prostitution is a lawful job.  “Having sex for money,” becomes a potential lawful part of any person’s job description.

Consider, for example, the restaurant known as Hooters.  I admit I have never stepped inside one of these, but we all know what they are about.  Apparently, Jacob Shamsian over at Business Insider went to one for, um, research:

If you’ve been to a Hooters lately, you’ve probably noticed something about the servers.

It’s pretty obvious: They’re all women. Hooters doesn’t hire any men as servers.

Further, as many lawsuits attest, the women are required to wear certain clothing, etc.  I have heard of Hooters being sued many times, but I have never heard of them losing and as far as I know, they have not changed their policies.  Why?  Because being a woman and dressing sexy is considered qualifications for the job (or BFOQ’s, if you prefer).  As they said to Business Insider:

Typically, gender based hiring is not permitted ... [However,] [t]he law allows the discrimination when it is necessary for the purpose of authenticity or genuineness as for an actor or fashion model. While we offer world famous wings and burgers, the essence of our business is the Hooters Girl and the experience she provides to our customers. Hooters Girls are entertainers. They audition for their roles and, once hired, they must maintain a glamorous appearance, and sing, dance and engage the customers to provide a unique Hooters experience.

Now, this is where I have to argue for the taboo idea of “justified sexism.”  I use that term often when discussing domestic violence.  Yes, men can be abused, but its not what usually happens.  I help people in abusive situations and I wouldn’t turn a man away, but we all know what usually happens.  Its usually men abusing women, not the other way around.  And here, with Hooters, what is unsaid is a bit of justified sexism: We all know that men go for this sort of thing much more often than women, justifying a business decision not to bother to hire men at all.  And it seems that the market agrees, or else I would think you would see a chain of restaurants called “Peacocks,” or something like that, where handsome waiters serve women food.

And the other hidden assumption is that when actual sexuality is involved, not only does the law presume that most people have a preference, but the law will respect that preference.  In other words, the courts will not say to Hooters “your customers should be equally attracted to both genders, so you have to hire men in equal numbers.”  No, they have gotten away with this for decades because the law allows them to recognize that this is something that men want so much more than women that it makes no sense to hire male waiters.

And it is worth noting that you generally cannot do this with race, and other forbidden factors besides sex.  If Hooters refused to serve black customers, or refused to hire black waitresses, for instance, I don’t think they would be allowed to get away with it.  But the belief that men will prefer to look at attractive women works for Hooters legally, because sexuality is part of their “product” and therefore, being an attractive woman is a job qualification (BFOQ, if you insist).

And based on a similar justified sexism, I doubt that legal brothels will hire women and men in equal numbers.  If that hiring practice is challenged on the basis of anti-discrimination law the answer is likely to be that it is legal because it reflects the customers’ preference.

So, let’s walk through this step by step, imagining an America where prostitution is made generally legal.  After prostitution is legalized, suppose a man opens a legal brothel.  He hires mainly women—though perhaps a few men—to work as prostitutes.  Everything seems legal so far, right?

The owner then says to his prostitutes: “If you are going to work here, you have to be willing to take all comers.  You can express a preference in terms of gender but you have to sleep with all customers of that gender regardless of race, disability, religion, whatever.  If you refuse to sleep with a customer of your preferred gender, you are fired.”  That’s legal so far, right?  That sounds like what you are likely to hear at your local Target: You have to serve all customers—only Target wouldn’t even allow an exception for gender.

Now imagine that this hypothetical owner decides to frequent his own brothel.  He picks out one woman, says he wants to be her customer, and let’s say she refuses at first.  Then he can say, “You have said you were willing to sleep with all male customers.  I am a man and your customer.  I have paid the money. Sleep with me or you are fired.”

Is that legal?  I don’t see how it isn’t, if prostitution is legal.

Let’s take that further.  Let’s suppose that the owner decides that he needs a bookkeeper at his brothel, but he doesn’t think he needs that person full time.  So rather than creating a part time position, he decides to put out a want ad for someone who can serve both as a bookkeeper and a prostitute and only considers applicants who are willing to do both.  Is that legal?  Sure, why not?  Who says that you can’t mix the job description of “prostitute” and “bookkeeper?”

Now, suppose that bookkeeper and prostitute is a woman (who prefers men) and then he decides to frequent the brothel as a customer and demands that she sleep with him.  Again, that seems perfectly legal, if prostitution is legal.

Now, let’s suppose we had a CEO of a Fortune 500 company, who is a straight man.  Suppose he says to the board, “I am stressed out all the time.  I need a full-time prostitute on my team, so she can help me relax.  It would need to be a woman who is attractive, attractively dressed and willing to sleep with me.”  And suppose the board agrees to that.  Again, that is obviously legal, if prostitution is legal.  It seems to me that if it is legal to hire prostitute available to the general public, that it would be equally legal to hire one who serves one customer.  (Indeed, that is less likely to spread of STDs.)

Now, let’s suppose instead that the board says to that creepy CEO, “we are willing to hire a prostitute, but it can’t be full time.  So how about instead hire a woman who is both an administrative assistant and a prostitute, and does both jobs?”  Suppose he agrees to that.  How is that any different from the brothel owner demanding a bookkeeper who is also a prostitute?

Now let’s suppose that the CEO then goes in the next day to work and sits down with his current secretary and says to her: “We have voted to change your job description.  Now your job is prostitution and secretarial services.  We would understand if you wished to quit and we will never bad-mouth you for doing so.  But if you wish to keep this job, you have to do both functions.”

How would that be illegal if prostitution is legal?  You might cite employment discrimination law, but if prostitution is legal, then having sex for money is a perfectly legal job description.  And yes, there is sexual discrimination in the sense that he is not interested in men, but there her gender is a bona fide occupational qualification: If her job is to be his prostitute, then she has to be someone he would want to have sex with.

And of course, if that is legal, then it is equally legal for a boss to say to his employee “Sleep with me or you’re fired.”  Its not as nicely put as what my hypothetically creepy CEO said two paragraphs above, but it’s basically the same thing.  At most, the boss would have to have the job description changed, but that is all.

I will also address another claim which is that if a boss demands sex from or her employee that this is coercion.  Often, those making this argument say that if the employee gives in to this demand that it is rape or sexual assault.

Well, folks it is not rape or assault and this is black letter law.  First, I would challenge anyone making this claim to find a single instance of successful prosecution under the theory of “rape by threat of firing.”

Indeed, if a threat of firing a person is considered coercive, then all employment is illegal.  Now, I admit that might not be obvious to people who don’t think about the law as much as I do, so let me explain.

You see, as you surely know slavery is illegal under the Thirteenth Amendment (with an exception for punishment for a crime that is irrelevant here).  As I have said before, it is one of the only parts of the constitution that an ordinary citizen (who is not part of the government) can violate.  If there is another part that applies to ordinary citizens, it doesn’t come to me right now.

But what is slavery?  It is the right to force another person to work.  For instance, “pick that cotton, or I will whip you.”  As I wrote in another context:

Since its inception, the Thirteenth Amendment has been read (correctly in my opinion), as applying to individuals and not just state actors.  After all, “paradigmatic” American slavery is a situation where a person says to another, “work for me, or I will kill you, beat you, etc.” And while of course there were laws in the South that allowed people to do this and these laws officially told slaves they had to obey their masters, making it illegal to run away, and so on, it wasn’t mainly the law keeping slaves in chains.  I doubt if even one slave obeyed their master because some words in a book told them to.  No, what kept the slaves in chains was largely private violence tolerated by the law.

So, slavery is the right to force a person to work.  That can be done by a direct threat “work for me, or I will shoot you,” or by an indirect threat such as “work for me, or I will whip your spouse.”

Likewise, if a person forces another person to have sex with them, that is rape (though it might be called sexual assault or something like that in your jurisdiction).  So, if a person is persuaded to sleep with another by “sleep with me or I will shoot you,” is a rape, and likewise with “sleep with me or I will shoot your spouse.”

So, if “sleep with me or you are fired,” is forcing a person to have sex, then a manager of a Target telling an employee to “operate a cash register or you are fired,” is equally forcing a person to work.  By that logic, all work is slavery! Oh noes!

Which should make you understand that this train of logic has gone off the rails.  It is not forcing a person to work to say that if they don’t work, they are fired.  And it isn’t rape to successfully convince a subordinate to sleep with you because you said “sleep with me or you are fired.”  No, that isn’t rape, it’s prostitution.  And the way to make such conduct illegal is to keep prostitution illegal.

But it seems like a good place to segue into what I think is happening, with all the consternation about me saying that if you legalize prostitution you effectively legalize sexual harassment.

First, I think it is clear that some of these people just don’t know the law like I do, or that the illegality of prostitution is so critical to banning sexual harassment.  They don’t see it and I am happy to try to explain, and hopefully I am successful.  And of course, society positively misinforms people about the law.  For instance, I remember watching the show Ally McBeal and wanting to throw something at the screen every time they would talk about the law of sexual harassment as if it was a codified set of laws.  It is not.  It is a series of interpretations of the basic command not to discriminate based on sex—a command that goes out the window when sex is a profession.

But the other difficulty I think some people are experiencing comes from the fact that I think when it comes to libertarianism, prostitution is a bit of a soft spot.  The libertarian philosophy is typically summed up as the idea that consenting adults should be able to do whatever they want to each other as long as it doesn’t hurt non-consenting adult third parties.  So, for instance, most libertarians believe that drugs should be legal because if you snort some cocaine the only person it really hurts is you, and you consented to it.  I say “most” in that last sentence because the libertarians I know often vary quite a bit on these issues.

But libertarians usually believe that prostitution should be legal.  After all, both parties are consenting to the sex and the fact that money is involved doesn’t change that.  If there is any harm, it is felt by them, or so the argument goes from the libertarian perspective.

So, pointing out that it legalizes sexual harassment really gets into a cognitive dissonance.  The reality is that if prostitution is legal, more people will be pressured into it by economics.  I am not saying they will be literally forced in a way that the law can recognize.  But is will create an incentive to do it in some people.  This is true even if you found a way to stop the creepy boss scenario I started off this discussion with (and I don’t think you can).  Maybe a woman is having trouble making ends meet and wants to hold on to her apartment and the only way she can think of raising the money in time is putting in some time in a local, legal brothel.  If you legalize prostitution, this sort of thing will happen more often.

(And I keep saying it will be more common because surely that sort of thing happens now, but not as much as if it was legal.)

And the thing to get is that libertarians are usually not very comfortable with the idea of a person being pressured, economically, into prostitution.  Most libertarians I know don’t see prostitution as “just another job” even if they think it should be legal.  So, they think of their sisters, mothers, wives and daughters and they don’t like the idea of them being pressured into prostitution—which will inevitably happen.  And I think my arguments get at that dissonance: They are not fully comfortable with people being pressured into prostitution.

To all that, I say this.  I can’t force you to think a certain way on certain issues.  But if you believe prostitution should be legal, then you have to recognize that a person might be economically pressured into it.  That’s just reality and it is hard to deny that is reality.  Even if it is not “sleep with me or you are fired,” it will definitely be “either I sleep with some strangers or I lose my home,” for some people.  And it is perfectly normal to be repulsed by the idea.  And so, if you want to legalize prostitution, you need to reconcile yourself with that repulsive idea, or admit that making prostitution legal is not a good idea.

It’s not the only reason why I oppose legalizing prostitution, but it is one.


One additional argument that is made is to point at something that is rarely or perhaps never done as somehow evidence that it would not be legal for a boss to demand sexual favors from an employee (if prostitution was legal).  One person said that their boss couldn’t demand that they engage in plumbing so therefore they can’t demand sex.  Another said they couldn’t demand stripping as a condition of employment.

But there is a difference between the will of the market and the actual law.  Let me give you a simple example.  When I entered the legal profession, I was told that legal secretaries in large law firms in particular did not like it when you asked them to get you coffee, and that legal secretaries typically held more pull than the average first year associate, so it was best not to ask.  Mind you, I had no problem with this, but let’s explore that.  Now, certainly it is not illegal to ask a secretary to get you coffee.  But legal secretaries as a group had decided that this sort of work was beneath them, creating a social difficulty in getting good legal secretaries who were willing to get coffee, so much so that firms generally didn’t bother: If they needed to order coffee, they would have an outside vendor deliver.  That shows you the way that, for lack of a better word, custom can prevent an employer from making an otherwise perfectly legal arrangement.

Another consideration is that often there is a concern about personal benefits v. corporate benefits.  A corporation is supposed to be an artificial person that has agendas that might be different from the owners.  Let’s say you have a situation where 51% of the company is owned by a single woman who then orders an employee to repair the plumbing on her house: The danger is that it would be seen as evidence that the company is just the alter ego of the owner because she is using the company for personal benefit.

But there are two things to note about the corporate benefit v. personal benefit dichotomy.  First, if a company is deemed an alter ego, the punishment is stripping away any protection from civil liability offered by the corporate status.  It doesn’t make the personal benefit illegal, just unwise.  Second, companies can provide many things to its employees that benefits them personally on the theory that a happy employee is good for the company.  So, for instance, a company can probably provide its officers with free weekly massages on the theory that if they are relaxed, they will do a better job.  So, the personal benefit/corporate benefit dichotomy is not as clear as you might think.

That is one reason why you should not confuse what corporations do with what is legal.  Another reason is that corporations don’t generally like to push legal envelopes, because all things being equal, corporations prefer not to be sued.  For instance, I noted above that a single racial epithet is not sufficient to constitute actionable racial harassment.  On the other hand, as a practical matter, if you are a white boss and you say the N-word, there is an extremely high probability you will lose your job.  If there is any discussion of the law at all when deciding your fate in this hypothetical, the lawyers will surely tell the company that they shouldn’t get anywhere near the line between a few racial insults and actionable racial harassment.  And wholly apart from legal concerns, the employees might be so offended that they would need to fire that person even if the law didn’t require it.

So, it may be possible for a number of reasons that even if it is suddenly legal to demand sex from a subordinate (“sleep with me or you are fired”), companies will absolutely refuse to tolerate it, anyway.  The first is that you would need some company to be willing to litigate that issue to the point to setting the precedent—and I doubt most companies would be willing to do that, considering how expensive a lawsuit can be.  The second is that even if they win, they might so completely offend the staff that they will have trouble retaining good employees.  But my comment was about what is legal, not what human behavior we might expect—because when it comes to human behavior, that is harder to predict than the law.


Finally, some people cite various provisions of the Code of Federal Regulations, which is abbreviated to C.F.R. The important thing to understand is that the C.F.R. is not law on this point.  It is guidance and because it is written in the context of it being that most American jurisdictions ban prostitution, it is not terribly persuasive if prostitution is legal.

For instance, 29 C.F.R. § 1604.11(a) states that

Harassment on the basis of sex is a violation of section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when... submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment[.]

That section seems to fail to imagine a scenario where it is a person’s job to have sex.  For instance, it is my understanding that in Nevada, some places have legalized prostitution (note: I have not checked, so check your local laws).  So, if this section of the C.F.R. is taken literally, a legal brothel in Nevada cannot tell a person that if they want to work there, they have to engage in sex even if the job is literally to be a prostitute!  I mean, the C.F.R. doesn’t even specify that the sexual contact has to be with a superior or even someone who works with the company, so it literally is saying that prostitution is illegal!

And, by the way, those kinds of mistakes are exactly why the C.F.R. is seen only as guidance and not actual law—that and the fact it is promulgated by bureaucrats and not Congress.  That means that the courts will consider their interpretation, but it is not controlling.  If it was controlling, then prostitution would be illegal in Nevada, even if certain jurisdictions within the state purported to make it legal.  That argument proves too much.



* Mind you, I did hear of one case where a man claimed that he was an equal opportunity harasser, but that was early in proceedings and I never heard of how that case turned out.  I would certainly say that he would have a hard time persuading the jury that he did it equally to men and women, given that most people have a preference. Further, I would suspect that if it had an unequal effect, that would be sufficient to meet the requirements of the law.  Still, regardless, the law requires inequality.

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