Embarrassment & Punishment

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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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