A Philosopher's Blog

Harassment & Punishment

Posted in Ethics, Philosophy, Politics by Michael LaBossiere on December 4, 2017

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2017 saw the fall of several influential men, ranging from Bill O’Reilly to Garrison Keillor, because of allegations of sexual harassment or worse. Politicians, such as Franken and Moore, have also faced allegations of misdeeds. As of this writing, no politician has recently lost an election or their current position because of such allegations. One obvious reason for this is that the political system is not like the employment system: while an employee has someone who can fire them, the removal of a politician is more complicated.

While many male elites have been accused of sexual misdeeds, the accusations vary a great deal. On the low end of the spectrum, Keillor claims that he merely accidentally touched a woman’s bare back. On the extreme end of the spectrum, Weinstein and Spacey have been accused of sexual assault and, on some accounts, rape. Somewhere in there is Matt Lauer. In all cases the punishment has been roughly the same: each man was fired. In the case of Keillor, there has been a thorough purge: old episodes of his “A Prairie Home Companion” will no longer be distributed and while the show will continue, it will do so under a new name (Keillor retired from the show about a year ago). In addition to being fired, the careers of most of these men will probably be over—it is unlikely that anyone will want to employ them in their former fields.

While it is tempting to regard these results as long-overdue justice, there is still a reasonable concern about such a system of punishment. It is not that these men are being punished for their misdeeds—that is, after all, a critical part of justice. It is that the punishment seems to be the same regardless of the severity of the misdeed. This violate a basic principle of justice, namely proportionality. This notion is typically presented in the saying “let the punishment fit the crime.” The basic idea is that the severity and nature of the punishment should be proportional to the offense. One moral justification for this principle is that punishment beyond what is deserved creates a new wrong rather than serving the ends of justice. By punishing every such offense, regardless of severity, the same way, this principle is violated. As such, justice would seem to require that distinct levels of such misdeeds should be punished differently.

One reasonable reply to this concern is to point out that unlike the judicial system, employers have a much narrower range of available punishments. The judicial system can, for example, distinguish between groping, sexual assault, and rape in applying a wide range of punishments. Employers, in contrast, are limited to financial punishments, demotions and firing.

If an employee engages in harassment or worse, the behavior can very easily warrant severe punishment. Because of the limited range of options available to employers, they cannot fully follow the principle of proportionality—since their punishment range caps at their ability to fire employees. As such, if an employee engages in improper behavior that crosses the firing line, regardless of how extensive the transgression, the upper limit of punishment would be firing. To use an obvious analogy, consider the situation of a university.

Like an employer, a university has a limited set of punishments available in relation to students, the most extreme of which is expulsion. Once a student hits the level at which they can be expelled, then any misdeed beyond that can only be punished by the university by expulsion. If one student persists in violating the academic code of conduct, they can be expelled. If another student burns down a fraternity house, killing dozens of people, then they can be expelled. If third student massacres a thousand fellow students, they can also be expelled. Naturally, the second and third students will also face criminal charges, but that is a matter for the legal system and not the university. Since expulsion is the maximum punishment, proportionality ceases once a student hits that level—no matter how far their misdeeds go.

Another reasonable concern is that transgressors might be punished too severely, even within the limited options available to employers. That is, the action of the employee might not warrant being fired, but they are fired anyway. In this case, the firing would clearly be unjust on the grounds of the proportionality principle. The problem is sorting out what misdeeds merit punishments less than firing. Some might argue that any sexual harassment or misconduct is grounds for firing—and a case could be made for that. Others might argue that an employee should be given a second chance for minor misdeeds and be subject to a punishment short of firing such as a financial cost or demotion. Since there are many possible offenses, the challenge would be sorting out a just system of punishment that meets the proportionality principle. But, as noted above, there are those who would argue that firing is just punishment for any misdeed that reaches the level of sexual harassment.

 

 

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16 Responses

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  1. dh said, on December 4, 2017 at 3:31 pm

    You make a distinction between the political system and the employment system – I think I’d take that a step further and point out the “high-profile” employment system.

    Just like with so many other issues, I think we are getting a disproportionate view of the world of sexual harassment – while it may be pervasive across all economic levels and more evenly distributed among gender relationships, the ones we hear about are the high profile ones. We love to hear about the rich and powerful being taken down – it is those stories that stay on the news, and the impression we are left with is that this issue is common to, or limited to, stars, famous people, and the ultra wealthy and powerful.

    With regard to the “punishment”, I wouldn’t call it that at all. One’s reputation is one’s own – we act morally, amorally, or immorally and weave our own reputations in the world. Some of us have reputations of a limited scope – we don’t have a public profile, we don’t have a “following”, we aren’t “stars”, so if we act in an immoral, unacceptable way, the reach of such erosion of our reputation is very limited. If we are at the top of the star chart, the way down is quite far – but none of that has anything to do with our employers.

    The firings of all of these people – Keillor, Lauer, Weinstein, Spacey – even going back to Cosby, Sheen and plenty of others, have nothing to do with punishment. No one is punishing anyone. The firings are all business decisions – based on “How much money can this company make if we play upon this person’s fame?” versus “How much money do we stand to lose if we stand by him through this scandal, and risk a ratings decline?”

    The proportionality of the “consequence” (not “punishment”) has nothing to do with the severity of the offense, rather, it has everything to do with public perception and ratings. “Punishment” would be legal – and so far, I don’t think any of these people have had to face any charges.

    I would draw your attention to the case of Don Imus, a radio “shock-jock”, who was a highly-paid morning show host for WFAN, a station owned by CBS. In 2007, he made some offensive remarks about the Rutgers Women’s Basketball team, that got a tremendous amount of notoriety, and resulted in many affiliate stations canceling the show and many advertisers pulling out. Imus was fired from CBS

    The result was a very lucrative lawsuit won by Imus against his former employer (the suit was for the $40 million remaining in his contract, which was settled by the station), and within months Imus had a bigger contract with Clear Channel.

    It looks like CBS probably made the wrong decision here. No one was “punished” except the station – Imus gained his reputation and popularity BECAUSE of statements like the one he made about the basketball players. His fans enjoyed it, expected it, and flocked back to him in droves as soon as he got another contract. Imus walked away with a substantial increase to his net worth.

    What happens with Keillor, Lauer, et al will remain to be seen – but none of it is “punishment” unless formal charges are brought and they face fines, lawsuits, imprisonment, or more. The “fall from grace” is of their own doing. (To that end, and only in my opinion, Keillor stands to lose the most – after all, his reputation was built on the “squeaky clean, down-home, country morality” image of NPR and Prairie Home Companion, so his fall from grace stands to be more severe than the others).

    As for politics, well, perhaps this series of scandals will bring about some true reform. I would like to see some kind of formal process initiated that has more teeth than simple “Ethics Investigations”. It’s a little late for sitting senators – grandfathering being what it is – but maybe there should be some kind of clause in the tenure of newly elected or re-elected politicians allowing for the suspension or recall in the face of this kind of ethics issue.

    • CoffeeTime said, on December 5, 2017 at 4:55 pm

      What happens with Keillor, Lauer, et al will remain to be seen – but none of it is “punishment”
      Yes, exactly. Companies do not punish employees for offences against other people, only for offences against the company. This is appropriate. It is not in my employer’s interest for them to punish me for bad behaviour to my family or neighbours, nor can they investigate such, nor do they have any standing to do so. However, if I leave work undone, or do it badly, or lose the company money, then it is appropriate and they may punish.

      In the case of Netflix, NBC, et. al. there is perhaps an argument to be made that they are punishing for exposing the company/brand to revenue loss and to liability, but mostly it’s clearly just dropping the accused out of the boat to avoid the mob.

  2. dh said, on December 4, 2017 at 4:53 pm

    I want to point out one additional factor that I am unable to prove one way or another, although I did hear this on the radio in a discussion of “A Prairie Home Companion”. I’d love to find a link to some confirmation, but so far my initial searches have turned up empty.

    What I heard was that the entire franchise “A Prairie Home Companion”, including the name, the intellectual property, and all the rebroadcast rights, belongs to Garrison Keillor, not NPR or MPR. I’m sure that the actual contract is much, much more convoluted and not nearly so simple – but it may be the case that Keillor can just sell the show & rebroadcast rights to another station. Whatever the situation, it was a real “cash cow” for NPR and/or MPR; I’m sure they are suffering as much as, if not more than, Keillor. Perhaps he can do what Don Imus did, and come out way on top.

    Of course, the media is only saying that the show has been pulled, without giving any reasons. Given the slant of all the attention this sort of thing is getting, I’m sure they are all fine with leaving the public impression that the stations are doing this as a way of punishing Keillor, or of maintaining a “zero tolerance” attitude – but that simply may not be the case. If Keillor’s real persona/personality is anything like the shy, awkward, withdrawing public persona (and all of his colleagues say that it is), it would be unlike him to take up this fight in public – so we may never know.

    • CoffeeTime said, on December 5, 2017 at 4:43 pm

      https://www.prairiehome.org/about/legal/ “The following are registered trademarks and service marks of Garrison Keillor: A PRAIRIE HOME COMPANION® …” so yes he owns at least the name, and I would guess the copyrights

      https://www.prairiehome.org/shows “MPR does not fully own the rights to continue to use the names or provide archive content for A Prairie Home Companion with Garrison Keillor and The Writer’s Almanac programs. Garrison Keillor and his companies own many of the rights to this artistic content.”

    • Michael LaBossiere said, on December 5, 2017 at 6:54 pm

      True; Keillor has provided the only details and his actions seem very minor-an accident rather than an assault.

      • dh said, on December 6, 2017 at 8:10 am

        This is the danger that I expressed in an earlier post. Keillor’s actions really do seem like an accident, one for which he apologized, one for which the apology was accepted, and one after which the friendly relationship continued – until he heard from the woman’s attorney. This has “bandwagon” written all over it.

        At any rate, the danger is in discussing Keillor and Lauer in the same sentence – or Lauer and Franken – or any of them. Some of these people made errors in an otherwise exemplary life and have demonstrated no propensity for continuing that behavior, while others engage in premeditated and consistent abuse of women and power to a criminal degree. Still others might not necessarily engage in overt “sexual abuse”, but exhibit a palpable misogyny, a disdain and disrespect for other human beings that they think is “funny” to express publicly.

        Not the same things at all.

  3. TJB said, on December 4, 2017 at 5:32 pm

    Leftist autophagy.

  4. dh said, on December 5, 2017 at 8:20 am

    The broader topic of “proportionality” within the context of my point of view – that this has to do entirely with business, ratings, and cash flow, and nothing at all to do with punishment – has been illustrated very clearly in events that took place this weekend. It doesn’t involve the wildly popular “sexual assault” topic of the day, just plain old “assault”.

    The offense took place during the NFL football game between the New England Patriots and the Buffalo Bills on Sunday. Tre’Davious White, a defensive end for the Bills, intercepted a pass by Tom Brady, intended for Rob Gronkowski. After the play was ruled dead, White was lying face down at the edge of the field – he wasn’t hurt, only a little slow to get up.

    At this point, Rob Gronkowski executed a pro-wrestling style body slam on the helpless White, elbowing him in the back of the head and sending him to the locker room for a head-injury evaluation.

    This was not part of the game – the play had been called dead and all the players knew it. Gronkowski, at 6’6 and 266 lbs, viciously and criminally assaulted White, who is 7 inches smaller and almost 100 lbs lighter. He did this on national television, to the outrage of every sportscaster who witnessed it. His statement? “I was really frustrated, and I let my emotions get the better of me.”. Oh – well, I understand now.

    I will repeat – this was a criminal assault of the highest order. Had this taken place on the street, the perpetrator would have been arrested and brought up on charges.

    However, since the New England Patriots are a wealthy NFL team, presumably bound for their tenth Superbowl appearance, and because Gronkowski is a popular franchise player, no such actions are being taken against him.

    Oh, he’s being suspended for a game – but will be available for their big game against the Steelers. He received a stern letter from the Director of Football Operations, telling him essentially, “This is not how we play this game”, The single game suspension is for a game that the Patriots will probably win anyway, and he’s appealing that to have it reduced to a fine in the meantime. How much of a fine would be appropriate, to a man who has a contract for a guy who has a six-year, $54 million contract, having received an $8 million signing bonus and an average annual salary of $9 million?

    The punishment for this offense is being levied against the New England fans and his teammates; this does nothing to punish “Gronk” at all.

    I think he should be arrested and charged with criminal assault, and suspended from football entirely until the case is settled. Nothing more than would befall any of us if we committed the same offense.

    But business is business, there’s a lot of cash to be made in the playoffs, and ultimately his fans don’t really care, so that’s that. Not even the fact that Gronkowski is white, and White is black will make a difference when there’s this much money at stake. Some people, as we continually see, are above the law. At 6’6, 265 lbs, and worth tens of millions of dollars, I guess this is another entity that’s “too big to fail”.

    • CoffeeTime said, on December 5, 2017 at 4:48 pm

      I agree that this incident should have been treated as criminal battery, but there is no Flash Mob currently acting as vigilantes on the subject of violence in sport.

    • WTP said, on December 5, 2017 at 5:14 pm

      I gave up on the NFL years ago, but I’ve never cared for Belecik nor the Patriots mostly because there’s always been this aura of cheating around them/him and it has persisted for decades now. I don’t really know Gronkowski’s reputation, if this is far out of character or not. I did see the replay of the hit. It was definitely a dirty hit and I believe he should be punished severely by the NFL. Can’t say I expect that to happen, can’t say I don’t. With the NFL, like all political organizations (wink-wink), it’s often somewhat opaque as to which faction is holding the most power.

      That said, this is still significantly different than criminal assault. One of the things about contact sports, especially hard-contact sports, and especially American football is the requirement it places on players to turn aggression on and off at a moment’s notice. From an evolution perspective, this is not a traditionally, natural thing. Yes, boxing, fighting, sparring that have been used training armies for millennia were somewhat similar, but in football that on/off switch gets thrown a very significant number of times for players in certain positions. Those close to the line of scrimmage, linebackers, etc. This is significantly different from assault and battery on a street or in a bar or such in that in the latter situations, in most cases, there is considerable time between the initial conflict and the initiation of physical contact. And in most of those situations, there are seldom more than two starts/stops to the encounter.

      Another factor is both parties have entered an arena of what they should obviously know as very dangerous and very violent. Not excusing the hit, but it’s not as if White was sitting in a bar minding his own business. And again, not that he isn’t truly a victim here and deserves all that goes with that status. But still different from truly criminal behavior. I’m reminded of Darryl Stingly, ironically of the NE Patriots of the 1970’s, who was brutally hit by the Patriots of that day, Oakland Raiders’ Jack Tatum, known as “The Assassin”. Various stories exist as to Tatum’s contrition, or lack there of, regarding this matter.

      • WTP said, on December 5, 2017 at 5:17 pm

        Ah, meant to also mention my main point in the context of the violence on/off switch and evolution and such, that head trauma could very well have played a factor in Gronkowski’s split-second decision making.

      • dh said, on December 6, 2017 at 8:21 am

        I would respectfully disagree. There’s a lot of latitude given in the NFL with regard to excessive violence, and game-time penalties are assessed for things like “roughing the quarterback or kicker”, “unsportsmanlike conduct” or “personal fouls”. I would agree with you on many, if not most, of what I’ve seen in the games I’ve watched or the replays I’ve seen – but this is different.

        The play was over, the ball was dead. The “heat of the moment” was gone. White was essentially helpless and defenseless – he had his back to Gronkowski and was merely getting up slowly when he was pounced on by a man who outweighed him by almost 100 pounds.

        “The heat of the moment” or “the inherent violence in the game” doesn’t cut it in this instance, in my opinion. We would not allow “I was frustrated and let my emotions get the better of me” as a reason for a cop doing the same thing after subduing a perpetrator, would we? Chasing down a purse snatcher or gang banger, tackling him to the ground, then, after he had been subdued, delivering a last-minute body slam out of frustration?

        Why can we forgive football players for not being able to turn off their emotions when we expect exactly that of our police officers and soldiers? They are trained, experienced, professionals – and part of their training is to be able to do exactly that.

        Would you change your mind if White had suffered a serious injury? How would that make a difference in Gronkowski’s actions?

        • WTP said, on December 6, 2017 at 11:30 am

          Well, my disagreement is respectful as well. Just don’t see the need for criminal law involvement to address the situation. The environment in which Gronkowski acted is not relevant to society as a whole. If he has had problems outside of football, behaving more aggressive or violently than any other similar athlete or, similarly, combat veteran, then we may have reason to be concerned.

          The play was over, the ball was dead. The “heat of the moment” was gone.

          Agree the ball was dead. Don’t agree that, in his head at least, the “heat of the moment” was gone. Without reviewing his concussion history it’s hard to say. In general, the environment in which this occurred is a function of American football and more specifically, NFL football. Not saying it is wrong for them to create such an environment, just saying that they are responsible for the rules of behavior within that context.

          We would not allow “I was frustrated and let my emotions get the better of me” as a reason for a cop doing the same thing after subduing a perpetrator, would we? Chasing down a purse snatcher or gang banger, tackling him to the ground, then, after he had been subdued, delivering a last-minute body slam out of frustration?

          Again, somewhat different situation but I will agree a bit more similar in that we are talking of someone acting at the behest of society while the football player’s violence is sanctioned at the behest of the NFL. I would definitely fire the cop. Likely have him pay some penalty beyond that as well. But the cop did not create the situation. I have some empathy for his position. Again, not excusing it, just saying it is not the same as a standard criminal assault. The perp has (presumably) struck first in a sense, thus that the cop’s actions would be more in line with that of someone who was struck first and retaliated. But all of that, again, would depend on the specifics of the case. How long after being subdued was the perp body slammed? One second? No. Two seconds, maybe. Five seconds, most likely yes.

          Why can we forgive football players for not being able to turn off their emotions when we expect exactly that of our police officers and soldiers?

          Well, you’re presuming that our expectations of police officers, and especially soldiers, is justified. Also, there is no other governing/insulating body around the actions of the cop or soldier to address the situation. Though that isn’t completely true as in the case of the soldier UCMJ or whatever is applied, not the laws as apply to citizens, including cops.

          Would you change your mind if White had suffered a serious injury? How would that make a difference in Gronkowski’s actions?
          In so far as injecting criminal law into this situation, no. See my reference above to Darryl Stingly. He was paralyzed and Jack Tatum was a much less sympathetic attacker, IMO (again, not knowing much about Gronk, just assuming some here based on what I haven’t heard). I do think that again, the NFL is somewhat accountable in that situation from a civil standpoint, and of course Gronkowski even more so.

          In general, I think an appropriate response in this situation would be for Gronk to never play another game in the NFL and lose what is left of his contract. If White has been shown to have suffered permanent injury, Gronkowski and probably the NFL (only if the NFL has not addressed similar problems in the sever manner I speak of here) should be held civilly responsible.

          • dh said, on December 6, 2017 at 7:53 pm

            “The environment in which Gronkowski acted is not relevant to society as a whole.”

            I think it is. I can’t think of any environment where violence like this should be condoned. Players can reasonably expect to be tackled brutally in many situations – that’s why they wear padding, it’s part of the game. Players can reasonably expect to be on the receiving end of dangerous and painful fouls – late hits, clipping, blocks to the back, face-mask violations – these are all “heat of the moment” actions with the goal of winning – or at least coming out on top during a particular play. It’s expected, it’s anticipated, it’s penalized, and it’s part of the game. Some fouls are more egregious than others, some cause more harm than others, and players are suspended and fined accordingly – although probably with somewhat less vigor than I’d like to see in some instances.

            So I guess that what we disagree on is the degree to which Gronkowski’s actions were or were not within reasonable expectations given the rather wide latitude of NFL football. I guess my line is drawn when a player is lying face down on the sidelines, unaware and defenseless, after a play is over, and he is body-slammed by an angry man who outweighs him by nearly 100 lbs. Maybe I’m too unforgiving – but I don’t see that as being even close to appropriate on the football field, in a boxing ring, in cage-fighting, on a baseball field, on a hockey rink or even in Congress. And if the NFL is going to allow their own greed to stand in their way of appropriate punitive action, then I think that someone else ought to act.

            Tre’davious White is now in “limited practice” duty, and still under concussion protocol. He has said that “the whole hood” is after Gronkowski, who had better watch his back when the Bills meet the Patriots again on Christmas Eve.

            http://www.weei.com/blogs/alex-reimer/bills-cb-tredavious-white-reportedly-says-whole-hood-after-rob-gronkowski

            Is this football, or gang warfare?

            I understand your point of view, I agree with it for the most part up to a point; maybe we just see this one incident differently.

            Of course, I’m a Bills fan – so maybe like Republicans and Democrats, I may be a little too quick to judge the other team.

            • dh said, on December 6, 2017 at 8:13 pm

              also,

              “in football that on/off switch gets thrown a very significant number of times for players in certain positions. Those close to the line of scrimmage, linebackers, etc. “

              I would point out that neither White nor Gronkowski are any of these – they are receivers, whose job it is to catch the football, or prevent others from catching it. Yes, they block, yes, they tackle, but their positions are more about artistry and athletics, not the brutality of some of the others.

    • Michael LaBossiere said, on December 5, 2017 at 6:54 pm

      Interesting points/


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