Arbitrary Rule

Arbitrary Rule

A new work of political theory captures the workplace power dynamics behind sexual harassment.  


It’s the rare person who works for a living and can’t easily recall their worst boss. In October, The New York Times and The New Yorker reported that for dozens of women in Hollywood, that boss was Harvey Weinstein. The revelations prompted a surge of women in other industries to come forward with their own accounts of sexual misconduct by their professional superiors. Among the still-ballooning roster of prominent men accused of lecherous or predatory behavior were Amazon Studios executive Roy Price, celebrity chef John Besh, and a number of high-status media personalities, including former Today host Matt Lauer, former talk-show host Charlie Rose, former New Republic literary editor Leon Wieseltier, and former NPR and New York Times editor Michael Oreskes. All of these men, multiple women have alleged, exploited their positions of authority to sexually harass, coerce, or even assault their female subordinates.

Because the vast majority of the individuals reporting the misconduct have been women, it’s easy to see how sexism and misogyny shaped their treatment in the workplace. It’s also easy to offer “rape culture” as a shorthand explanation for why men like Weinstein were positioned to harass and assault women with impunity, sometimes for decades. But there’s another dimension to these cases of harassment and assault that has been somewhat less discussed. In the majority of the incidents that have come to light, the victims’ second-class status as women has been deeply entangled with their second-class status as employees.

Many of the incidents, as the journalist and Nation contributor Bryce Covert notes, expose loopholes in our federal labor laws, which currently deny sexual-harassment protection to independent contractors, a category that includes actresses and other freelance workers in the arts and entertainment industries. But even beyond that, these cases demonstrate the fundamental inequality of the employment relation itself. While most people understand that the predations of longtime abusers in the workplace are the result of those abusers’ inordinate “power,” it’s crucial to unpack exactly how that power operates and why it exists at all, if we’re to have any chance of contesting it.

This particular power dynamic is the subject of Private Government, the new book by Elizabeth Anderson, a professor of philosophy and women’s studies at the University of Michigan. In it, Anderson argues that employers today exert a degree of authority over their employees that, in many cases, is more restrictive than the authority that the state wields over its citizens. Employers can dictate how we dress, what we’re allowed to say on social media, even what we do with our free time. It is perfectly legal, Anderson notes, for Tyson Foods to refuse its poultry-plant workers bathroom breaks, or for Apple to rifle through the belongings of its retail staff on a daily basis, causing them to lose up to half an hour of their unpaid personal time waiting to be searched. It is also perfectly normal for employers to surveil workers’ communications, to order them to undergo medical testing, or to punish them for their political preferences. And yet, as Anderson points out, “if the U.S. government imposed such regulations on us, we would rightly protest that our constitutional rights were being violated.”

In part, this is because we are subject to more than one kind of government in our lives. Government, by Anderson’s definition, “exists wherever some have the authority to issue orders to others, backed by sanctions, in one or more domains of life.” Federal and state governments are, at least in theory, public—that is, constrained by democratic norms and law—and therefore we expect a degree of transparency, and also to have some say in the decision-making. Those in charge of corporations, however, make and execute rules privately and therefore exert total domination over their subjects. For subjects under private government, how the rules are crafted, or when and how they’re applied, is simply none of their business. Today, many of those rules are also deemed to be none of the public government’s business, either. “Private government,” Anderson writes, “is government that has arbitrary, unaccountable power over those it governs.”

Anderson’s book isn’t explicitly about the recent wave of scandals in Hollywood and beyond, and yet her notion of corporations acting as private governments nevertheless seems an accurate characterization of Weinstein’s singular control over his company, where he regularly terrorized employees—even those who escaped his sexual advances—with vicious outbursts and temper tantrums. It also characterizes the other workplaces that have harbored high-level harassers, such as the New Republic offices during Wieseltier’s tenure there—who, in addition to sexually inappropriate behavior toward women, reportedly used his status to bully and belittle underlings of any gender with impunity. The expression “open secret,” which has been repeatedly invoked over the past few months to describe the behavior of prominent men who harassed their subordinates, suggests it wasn’t that no one believed the women reporting the harassment, but that few were interested in stopping it—or, more likely, that they simply lacked the ability to do so because of the far-reaching authority these bosses held.

What’s most troubling about these instances is not that they’re wild outliers, but rather that they are highly visible variations on the power asymmetry that structures the majority of American workplaces. As many as 80 percent of workers in the United States, Anderson claims, are “subject to dictatorship at work.” About a quarter already explicitly describe their workplaces as such, and those who don’t are “one arbitrary and oppressive managerial decision away” from understanding how painfully thin their rights at work are. The discretion exercised by managers daily ranges from the mundane (your supervisor screaming at you for not responding to his e-mail within minutes, but taking days to respond to yours) to the deranged (the foremen at an Amazon warehouse in Pennsylvania who refused to open the doors and allow air circulation on a hot day for fear of theft, preferring instead to let assembly-line workers collapse from heatstroke).

Why do bosses wield such power, and employees none? According to Anderson, the primary source of employers’ absolute control over workers is the at-will employment contract, which has been the norm in the United States since the late 19th century and is enshrined through a dense network of laws. At-will employment allows bosses to fire workers at any time for any reason, barring only a handful of exceptions explicitly prohibited by law, such as racial or gender discrimination and union activity—which, incidentally, are protections that are usually difficult and costly to prove have been breached.

The at-will employment contract “grants the employer sweeping legal authority not only over workers’ lives at work but also over their off-duty conduct,” Anderson explains. If bosses need not give any reason at all for firing a worker, then what’s to stop them from sacking someone for smoking off the clock or having premarital sex? (Both cases have happened in the United States.) As Anderson notes, very few workers grasp how comprehensive and punishing at-will employment is until it’s too late, and assume instead that they can’t be fired for things like their activity outside of work or their political beliefs. (Juli Briskman, who found herself swiftly out of a job after informing her supervisor that she was the woman shown raising a middle finger to President Trump’s passing motorcade in a viral photograph, is just the latest example to demonstrate otherwise.)

Libertarians argue that because at-will employment stipulates that employees can also quit for any or no reason, and because employees and employers both willingly agree to enter into the employment contract, workers enjoy as much freedom and choice as their bosses. But for Anderson, this is a “superficial symmetry.” Quitting a job decidedly does not amount to firing your boss, as some free-market enthusiasts like to claim; you may no longer have to work with him, but you will also lose your source of income, your employer-sponsored benefits like health care, and your eligibility for unemployment insurance.

In fact, at-will employment so tilts the playing field in favor of employers that sociologist Arne Kalleberg, who studies precarious work in an international context, suggests that one reason the rates of temporary work remain lower in the United States than in Europe is that the pervasive nature of at-will employment in the United States essentially renders even “permanent” workers temporary in practice, since they can be dismissed at any moment and without any specific cause.

Even after workers leave a job, they often remain tethered to the whims of their former bosses. This is particularly true in white-collar and creative professions, where references from past employers are usually required for securing new employment, and workers are therefore obligated to maintain friendly relationships with former bosses. Professional networks built on recommendations (or a lack thereof) are precisely what allowed a number of men in media and entertainment to keep former subordinates in line even after subjecting them to horrendous treatment. Weinstein, as we now know, toyed with the careers of his chosen victims, cajoling sex from them with the promise of stardom and punishing those who refused by blacklisting them from the industry. Likewise, Wieseltier’s perch at the New Republic allowed him to modulate between tyrant and mentor without censure: As a former staffer told The Huffington Post, “He was perceived as the person who capped editors, who created editors, made careers.”

Though Anderson doesn’t explore in depth how the structure of private government exacerbates gender and racial inequalities in the workplace, one can surmise that because male and white workers are more likely to hold managerial positions, female and nonwhite workers suffer disproportionately under workplace hierarchies that permit or enable maltreatment. While harassment because of race or gender is among the few types of workplace abuse prohibited by law, the burden of proof in such cases rests entirely on employees, who often lack the time or the means to seek redress. This inevitably means that most of these violations go unpunished, particularly in low-wage sectors like domestic and service work, where the rates of sexual harassment and assault are much higher than they are in the newsrooms and studios that have recently fixated the media’s attention.

The #MeToo stories that flooded social media after Weinstein’s downfall injected new urgency into the call for gender equality in the workplace. Subsequently, the common (perhaps commonsense?) solution proffered by many has been for companies to install more women in higher positions. “Real change will require the willingness of men to promote women and share power,” the journalist Marin Cogan wrote in The New York Times. Anna North at Vox argued similarly: “Representation is critical for preventing sexual harassment and creating an environment in which women can thrive.”

Yet when the problem is glossed as “men” but not “bosses” as well, something critical goes missing. It’s probably true that more women managers would lead to a reduction in workplace sexual harassment (although it’s not guaranteed; just this year, Miki Agrawal, the self-styled “She-E-O” of the menstrual-underwear company Thinx, was accused of harassment by a former employee). But in order to undo the power differential that facilitates abuse without consequence, we should think of sexual misconduct as one part of a long continuum of worker abuses that occur under private government. As Anderson points out, even absent sexual offenses, employers can and often do “demote employees; cut their pay; assign them inconvenient hours or too many or too few hours; assign them more dangerous, dirty, menial, or grueling tasks; increase their pace of work; set them up to fail; and, within very broad limits, humiliate and harass them.”

Separating sexual harassment from other forms of worker mistreatment can also function as a sleight of hand that allows potentially unsavory employers to claim the high ground. For instance, in the wake of #MeToo, Sophia Amoruso—the high-profile founder of the online retailer Nasty Gal and the author of the pop-feminist career-advice book #GIRLBOSS (now also the name of her online women’s magazine)—posted a photo to Instagram of a marquee reading “Rape culture ends now—” and the caption “Just another day at the office.” The implication, of course, was that when women run businesses, even those who don’t stand to make social gains. Yet, in 2014 and ‘15, Nasty Gal was beset by allegations of ill treatment from former employees. Two filed lawsuits claiming that they had been abruptly fired after becoming pregnant or disclosing health issues. A number of others called the work environment “toxic.”

In other words, the key to reducing workplace injustice of all types is to find ways to constrain the sweeping power of employers, as opposed to simply allowing a different set of people to wield it. To that end, journalists Sarah Leonard (features editor at The Nation) and Judith Levine (co-founder of the National Writers Union) have advocated unionization and other forms of collective organizing, which has been one of the few ways that women have successfully fought gendered workplace exploitation, often alongside their male co-workers.

Anderson, too, notes that labor unions have historically been the primary method by which workers in the United States have asserted their voices on the job. She includes unions among other suggestions for increasing workplace protections, such as a federal bill of rights for workers and European-style works councils. But she also expresses some skepticism over their efficacy for today’s workforce; in her view, unions often “take an adversarial stance toward management—one that makes not only managers but also many workers uncomfortable.” While this may be true enough, Anderson’s concerns feel somewhat at odds with her provocative and convincing thesis that most American workplaces operate as dictatorships. Dictators rarely cede their power and, more often than not, must be toppled by force.

When it comes to confronting deeply entrenched power, a certain degree of hostility tends to be useful. Lately, this seems very much on display: Over the past few months, as more and more stories of sexual harassment and assault in the workplace have flooded forth, women’s anger has swelled without apology. Women who have been assaulted, groped, propositioned, or harassed by their bosses are angry; women who have suffered at work after rejecting sexual advances from their professional mentors are angry; women who have escaped such situations but hear these stories are angry. “The anger window is open,” the journalist Rebecca Traister wrote. Under our current employment arrangements, anyone working for a boss—whoever they may be—has cause to be angry, too. The difficult task ahead of us, as ever, is figuring out what to do about it.

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