You’ve probably had a boss who was a jerk. Indeed, you may be working under a jerk of a boss right now. Question: Would it be a good idea to pass an Anti-Jerk Law to protect workers from these jerky employers? Like existing employment discrimination laws, the Anti-Jerk Law would allow aggrieved employees to sue their employer for jerkiness – and received handsome compensation if they prove their charge in a court of law.
I doubt many people would endorse this Anti-Jerk Law. On what basis, though, would they object?
Libertarians might stand up for the “right to be a jerk,” but few non-libertarians would find that convincing.
Economists might appeal to the standard economics textbook conclusion that mandated benefits – including the right to sue your employer for jerkiness – are inefficient. But few non-economists would find that convincing.
Why, then, would normal people refuse to endorse an Anti-Jerk Law? If pressed, the reason would probably be along the lines of, “Jerkiness is way too subjective.” If you call your boss a jerk, he’s probably thinking, “No, you’re the jerk.” Even if a large majority of the workers at a firm consider their boss a jerk, a contrarian might insist, “The boss is tough but fair. You folks simply don’t measure up.” Other people might muse: “Personality conflicts are a fact of life. You can’t legislate them out of existence.”
What happens if you scoff at the subjectivity of jerkiness and pass your Anti-Jerk Law anyway? All of the following:
1. Bosses try to avoid the appearance of jerkiness. But bosses with poor social skills or bad luck still get sued.
2. Since bosses try to avoid the appearance of jerkiness, litigious employees don’t have a lot to work with.
3. As long as judges and juries are sympathetic, however, they lower the de facto burden of proof, allowing the war on jerks to continue indefinitely.
4. Bosses, in turn, defend themselves by trying to pre-emptively discredit litigious employees.
5. Cynical bosses go a step further by trying not to hire employees who are relatively likely to cry “jerk.”
6. Human resource departments institute Orwellian anti-jerk training, where participants get punished for pointing out that the HR folks are domineering and insulting. In other words, HR reps exemplify the very thing they claim to oppose.
7. If so-called jerky managerial styles enhance productivity (think: athletic coaches), society forfeits major benefits.
As far as I know, no country has an Anti-Jerk Law in place. But many countries ban “discrimination,” and the effects are much the same. Once you pass discrimination laws…
1. Bosses try to avoid the appearance of discrimination. But bosses with poor social skills or bad luck still get sued.
2. Since bosses try to avoid the appearance of discrimination, litigious employees don’t have a lot to work with.
3. As long as judges and juries are sympathetic, however, they lower the de facto burden of proof, allowing the war on discrimination to continue indefinitely.
4. Bosses, in turn, defend themselves by trying to pre-emptively discredit litigious employees.
5. Cynical bosses go a step further by trying not to hire employees who are relatively likely to cry “discrimination.”
6. Human resource departments institute Orwellian anti-discrimination training, where participants get punished for pointing out that the HR folks are hostile and bigoted. In other words, HR reps exemplify the very thing they claim to oppose.
7. If so-called discrimination enhances productivity (think: standardized testing), society forfeits major benefits.
Why do the same patterns emerge in both cases? Because “he discriminated against me” is about as subjective as “he was a jerk to me.” In both cases, they feel very real to the accuser. In both cases, they feel very unfair to the accused. If you knew neither party, you’d probably decline to even express an opinion.
And with good reason.
READER COMMENTS
Chris
Nov 23 2020 at 2:55pm
Discrimination has a demonstrable harm to the receiving party and is usually supported with evidence as to the discriminatory behavior as well as the harm caused. It isn’t subjective, though it can sometimes be hard to prove.
Discrimination is also focused on an individual or group based on characteristics outside of their control. Jerkiness would typically be applied to everyone at or below the offender’s level in the company hierarchy.
anti-discrimination training is far from draconian, involving simple lessons on behavior that is allowed versus behavior that is not, according to company policy and law. If anti-jerk laws were to be passed, training on what those include would be very similar. I can’t imagine what people find to be so upsetting about training regarding the law and how to appropriately interact with coworkers.
I do not believe that laws against being a jerk would work very well as there are myriad ways to be a jerk and no law could possibly cover them all. It also doesn’t negatively impact one person or group over another, and if it does, it would be covered by anti-discrimination laws.
As a white male you can conjure up hypotheticals all you want and argue about the subjectivity and economic impact of discrimination laws, however for those that have faced actual discrimination in the work place, they know it is not a mere accident that occasionally happens. It’s a pattern of malicious behavior that causes demonstrable harm.
Mark Z
Nov 24 2020 at 12:21am
If actual anti-discrimination training were just about telling people not to be jerks, or not mistreat co-workers, etc., I don’t think it would be so controversial. Often it is much more than that.
Everything that you say about discrimination is also true about people being ‘jerks’ to their subordinates or co-workers for reasons not related to race, sex, or other special categories. It is also often not accidental; some people are consistently jerks (it is also the case that instances of discrimination can be ‘accidental’ or incidental one-offs – e.g., someone unknowingly making a joke that offends a colleague – that aren’t a pattern of malicious behavior).
Your last paragraph is interesting since some institutions – many universities but also corporations as well – do discriminate against white males in admissions or hiring openly and legally, so being discriminated against isn’t at all foreign to this demographic group.
nobody.really
Nov 24 2020 at 5:21pm
Cite?
(Especially regarding universities: In the interest of diversity, I suspect many universities discriminate against white FEMALES. But even then, I had not heard of them discriminating openly, unless we’re talking about a single-sex institution.)
Mark Z
Nov 24 2020 at 8:51pm
A summary of race preferences by state:
https://ballotpedia.org/State_data_on_colleges_considering_race_in_admissions
I’m not aware of any university that discriminates in favor of men for the sake of diversity. Generally, female-only scholarships, organizations, programs etc. are much more likely to be exempted from anti-discrimination law (specifically Title IX) than male-specific ones.
It is commonplace for advertisements for academic jobs to say that they are especially looking for women and underrepresented minorities (i.e., not Asians), so it’s not really a secret.
nobody.really
Nov 25 2020 at 12:19pm
It’s quite common–although I had failed to reflect that tech-oriented schools have the opposite bias. Note, however, that I’m discussion undergraduate admissions, not hiring.
Moreover, it’s interesting how the discussion has shifted from discrimination lawsuits to affirmative action. Whatever the merits of Affirmative Action, I suspect they differ from the merits of antidiscrimination laws and litigation.
Mark Z
Nov 25 2020 at 3:07pm
Interesting, I guess applicant gender preferences push toward equilibrium.
I brought up affirmative action to point out that it isn’t true that certain groups ‘just don’t understand it’ because they’re never discriminated against, and to point out what I think is the inconsistency between insisting that the mere legality of discrimination, however rare it becomes, is an egregious threat to the well-being of some groups, and the belief that the legality and encouragement of discrimination against in certain contexts other groups is harmless or salutary.
Joel Pollen
Nov 24 2020 at 2:48am
Your description of anti-discrimination training may have been accurate 10 years ago but it is not now, at least in many workplaces. I work for a major public university in the United States. We had an anti-raacism training recently which contained exactly zero references to laws about workplace harassment or discrimination. It was almost entirely focused on the concepts of systemic racism in the US, implicit bias, and collective guilt. I wasn’t upset by this training, but I certainly disagreed with many claims made in it.
Friends and family of mine in completely different fields have had the same experience with corporate training on this topic.
nobody.really
Nov 24 2020 at 5:35pm
I gotta say, I had a similar reaction. I sense Caplan doesn’t care for the current focus on racial discrimination. Can we cite any statistical measure of the resulting harm?
Imagine that all the alleged harms Caplan identifies are real. And also imagine that all the alleged harms of racial discrimination are real. What public policy should we apply? Caplan argues that laws against racial discrimination have costs–and I don’t doubt it. He seems curiously silent about whether racial discrimination also has costs–and what remedies HE would propose. Objecting to a policy merely because it is not costless seems like a facile form of policy analysis.
That said, I sense I may be stepping into the middle of a series of similar posts. Has Caplan presented a better documented argument elsewhere?
Mark Z
Nov 24 2020 at 9:05pm
I think it’s a fair point that the effect may be pretty small, but it’s not a positive defense of a policy to say, ‘we’re not doing enough of it to hurt anyone, so we may as well do more.’ However, if universities or employers openly discriminated against women or ethnic minorities, I doubt many people would ask, ‘but is there any measurable cost’ before attacking the practice. The case in favor of anti-discrimination law is rarely couched in utilitarian calculation; even if it a negligible fraction of businesses discriminated, I don’t think it would still be considered acceptable.
There have of course been plenty of studies on the effects of affirmative action, and as one would expect there are studies reaching opposite conclusions. I think it’s been found that affirmative action increases minority admission in universities, but likely increases dropout rates as well. Some recent research has found that elimination of affirmative action has positive economic effects on low income and immigrant just from its effects on Asians (who are most disadvantaged by affirmative action, and many of whom are low income upon immigration).
River (Frank) Bellamy
Nov 23 2020 at 4:43pm
I think the core argument you are making is right, but I would like to offer some refinements:
(1) There might be an argument that the anti-jerk law is void for vagueness, if it is a criminal law (which I don’t believe you specified) or if one can argue that it infringes First Amendment rights.
(2) I think there is a core idea of discrimination that is not vague and which it is good to legally prohibit. If the boss says “I don’t like black people working for me” or something to that effect, and then fires a black person, I think it’s fine to call that discrimination and let the fired black person recover damages. If the boss has a clear pattern of firing black people but not white people (or vice versa) for identical conduct, I think it is fine to call that discrimination and let the fired employees recover damages. If the boss says “I’ll promote you if you have sex with me” (quid pro quo harassment), I think it is fine to call that discrimination and allow the worker to recover damages. I think the problem you are pointing to is a problem with specific doctrines within antidiscrimination law, not with antidiscrimination law in general. Most centrally, I think the problem you are pointing at is specifically with the notion of hostile environment harassment. What is a hostile environment? I don’t know, and I worked on this a bit as a lawyer. That’s where the real vagueness problem is.
john hare
Nov 23 2020 at 6:14pm
I’m with Bryan on this one. Attempting to force people to act “right” often has unintended consequences. Very specifically point 5 is widespread as a fired Caucasian presents no problem comparable to a fired minority. Discrimination is such a prevalent accusation played by some that it has negative effects on the diligent of that race. Or, the good people pay for the problems caused by the bad.
It’s very like the difference between a cost plus percentage contract and a fixed price one. Massive amounts of training and oversight cannot overcome the inherent problems with the first one. Honest people resent being lectured and trained to do the right thing that they would do anyway. Dishonest people don’t care and will discriminate or be a jerk any time they can contrive a way to get away with it.
Phil H
Nov 23 2020 at 10:06pm
I see the analogy with discrimination laws. But there’s an equally apt analogy with assault laws. Back in the day, it used to be considered acceptable to physically chastise an employee. Now it’s not. Along the way, I’m sure many people protested at the absurdity of the idea (it’s amusing to watch the same arguments being played out around the smacking of children).
But business is better now that bosses can’t hit employees. It’s better for the employees. It’s better for the bosses, though they grumble, because they are forced to work out effective incentives rather than the bad old ones. And it’s better for the bottom line. The same will be true when discrimination really stops: The idea that it will be better for the bottom line is uncontroversial; the idea that it will be better for employees is uncontroversial; and does anyone really think that bosses who discriminate are gaining anything from it?
And incidentally, both the rule that you can’t hit your staff and the rule that you can’t discriminate *are* rules against being a jerk. Jerkiness is constituted of precisely that stuff (and some other stuff as well.)
Thomas Hutcheson
Nov 24 2020 at 7:01am
Caplan is right. We should be careful to calculate the costs and benefits before passing an Anti-Jerk law. The costs (Caplan has an admirable list of the costs) could easily exceed the benefits.
Daniel Klein
Nov 24 2020 at 11:46pm
Great post.
Adam Smith (in TMS) writes about the evil of treating loose, vague, and indeterminate rules (like those against “discrimination,” “jerkiness”) as though they were precise and accurate (like the rules of commutative justice). Smith pretends to be writing about books of casuistry but I think he is dissembling the true target, which is the interventionist regulatory state, as I explain here.
Smith deserves a little bit of credit for having been a crude forerunner of Bryan.
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