Wednesday, March 16, 2016

The Right to Control What Other People Think

by Sherry F. Colb

In my Verdict column for this week, I consider the question, which arose on a podcast, whether a shoe salesman with a foot fetish has a duty to disclose his fetish to his customers at the shoe store.  In exploring this issue, I also discussed the hypothetical case of the proctologist, urologist, or gynecologist who wishes to use her patients as fantasy material.  Pedophiles (of the non-practicing variety) were the next case.  From one point of view, people who use their privileged access to collect masturbation material are exploiting their customers, patients, or students.  From another perspective, what the customers, patients, and students do not know cannot harm them.

Though I come to a conclusion about these cases in my column, the reality is that these questions are difficult.  People do want to have control about what and how other people think of them, which is why we have torts like defamation and invasion of privacy.   Indeed, managing one's reputation and appearance before the public is something that most people care about.  At the same time, the idea of "thought control" is frightening to most of us, and we would prefer not to regulate (or perhaps even to judge to be immoral) people's thoughts, however peculiar or "exploitative" they might be.

Another way of thinking about the moral questions I pose in my column is to ask whether, if we knew that a particular person exploited access to customers, patients, and students for his fantasy life, would it be legitimate for us to count that practice against the person as a reason not to hire him or perhaps even as a reason to fire him?

In one sense, this seems more benign than saying that the person is doing something wrongful and worthy of a negative judgment in some objective sense.  If I was in charge of hiring doctors for a gynecology practice, and I somehow learned that an applicant for the job liked to fantasize at night about the bodies of the women he examined during the day, I could defend a decision not to hire him by saying that there is something unprofessional about looking at his patients as fantasy material instead of (or even in addition to) looking at them as patients in need of medical care.  Whether or not the particular doctor could control his impulse to fantasize about his patients (and accordingly be blamed for choosing to exploit them), I might determine that his mental conduct could be detrimental (in some difficult-to-pin-down way) to the doctor-patient relationship.

At the same time, it could well seem an inappropriate invasion of the doctor's privacy for me to be basing decisions about whether to hire him on his after-work fantasy life.  For all I know, he takes a fully professional attitude toward his patients during the day and only later in the evening recalls visual and tactile experiences from the day to feed his fantasy life.  Perhaps the things that turns him on when he is not at work are truly none of my business.  Ironically, I may be inflicting the same kind of harm on him--by excluding him from the workplace based on what is rightfully personal and private for him--as I claim he is inflicting on his patients, by taking his memories of their private body parts as fodder for his fantasy life.

Though I am not entirely comfortable with this resolution, I am once again led to conclude that people's fantasy lives must belong to them and not to others who would judge them or wish to take their jobs away.  In truth, most of us have no idea what sorts of fantasy lives others of us lead and might well be shocked and horrified to learn the details of what currently do not know.  Perhaps we cannot help ourselves from judging what we view as exploitative fantasy, just as the fantasizer may not be able to stop himself from having the fantasy in the first place.  Maybe the ideal situation, then, is that we remain ignorant of the fantasy lives of shoe salesmen, proctologists, urologists, gynecologists, and even school teachers, so that in reality--even if not in theory--we allow people the freedom to enjoy whatever fantasy life they like, without intruding with our (possibly inevitable) judgments.


Joseph said...

Thank you, Prof. Colb for another thought-provoking piece. The matter does seem to concern personal ethics absent any kind of claim for fraud/false-pretenses, an unreasonable risk of harm due to a 'propensity'(the most debatable aspect), or an act of invasion as in Sliver (indeed the camera is somewhat superfluous as a peep hole would have also been a violation). It is a question of harm as well as action; whether or not the harm is currently known. Apologies for a possibly unsettling hypothetical, but if someone sneakily prepared you food that included animal products, you would consider that a harm and it would be recognized as such under the law (to you, not the animals, of course). That you are unaware does not impact the fact that a harm was done to you. Peeping on someone is perpetration of a harm whereas helping someone with the fit of their shoe is not.

If thoughts alone may constitute a harm, then the person who goes into a shoe store or walks by a playground for their own wayward motivations should similarly be forced to disclose their thoughts. There are many circumstances where we would wish to know another's thoughts. I think we all accept that others' (and ourselves if we are imperfect) are going to have bad thoughts and questionable motivations in any number of contexts. Some motivations are really bad and some contexts heighten concerns, but there are significant distinctions between a harmful action and a thought that could lead to harmful action. If a thought or motivation does come to light or is merely suspected, I think we are entitled to judge and make decisions such as shopping at a different shoe store. But I agree that making a point of judging can be just as bad.

I witnessed an older gentleman greet a young guy on public transportation and it was obvious they knew each other and hadn't seen each other in awhile. They were conversing and the older man asked for help figuring something out on his new smartphone. A woman stranger interjected with an offer to help. The man unwisely handed his phone to her and as she explained about settings and whatnot, remarked that he had visited lots of porn sites. He quickly blamed his nephews he alleged had used it. She was persistent, grilling him, embarrassing him in front of his younger friend. He defended that he didn't know how to use the phone and he couldn't have done it. The young man got off at his stop and the woman continued to insist he was the culprit who looked up the porn. It was some kind of power trip for her I think. He continued to plead not guilty and she warned him to cease his objections!

In sum, we have no right to know the fantasies of others and it is inevitably a slippery slope where people will be abused by the most self-righteous among us; also, don't let a stranger peruse your electronic devices.

Joe said...

I might not go to a shoe store if I knew the worker as a foot fetish type, but might not go if s/he was a racist either. There are other (insert chain) outlets to go to. Still, they have a right to a private life in that respect, and don't have some obligation to take a questionnaire so customers can get a sense of things.

If private things somehow come out, they might be reasonable grounds to not hire or something as you say. There is enough of a neutral correlation to the chance of some problem even if the person assures you he or she won't let it affect them. OTOH, even there, that can be taken too far. And, a myriad of possibilities might arise there depending on one's tastes with the likely net result of censoring are private lives.

Greg said...

In my view, there are 3 concerns here: consent, disclosure, and discretion.

A shoe customer consents only to those actions necessary to purchasing shoes. Any additional actions taken by the salesperson for other purposes, even seemingly minor ones, would overstep the consent given by the customer. This is the most real concern. Even taking longer than is necessary to perform your duties could constitute overstepping the bounds of consent.

A second issue, closely related to consent, is the issue of disclosure. The customer has a reasonable expectation that their interactions with their shoe salesperson will not be disclosed to other parties. If the shoe salesperson discloses certain aspects of their interaction with the general public, that also can be an invasion of the customer's privacy. More interestingly, I would argue that actions that increase the risk of disclosure of the customer's interaction (such as keeping a private diary of shoe sales for purposes other than selling shoes) may represent a harm to the customer's privacy interests.

If there was evidence of either of the above, that would be reasonable grounds not to hire.

The more interesting issue is the issue of discretion. Simply knowing that your shoe salesperson has other motives than selling you shoes could negatively affect the salesperson-client relationship. As such, the employer has a reasonable expectation that the salesperson not disclose that they have other motives. This is a reasonable case of "don't ask, don't tell." If the employer knows that the salesperson has other motives, even if there are neither consent nor disclosure concerns, the employer still has a reasonable concern that the salesperson is insufficiently discreet in keeping those other motives to themselves.

This last one is problematic, as it can invade the salesperson's private life, especially if the exposure of the salesperson's information was made by someone other than the salesperson.

Ultimately, the rule I might choose in an ideal world (almost completely unimplementable due to imperfect knowledge) would be that if an employer knows that the salesperson has other motives while at work, that would be enough to avoid hiring them. This would be to avoid conflicts of interest. However, if the salesperson, to the best of the employer's knowledge, were only responding to events that happened outside of work that would not represent an offense warranting not hiring them.

CJColucci said...

Many years ago, an impecunious gay artist friend of mine needed a nude male model for an art project. As someone generally sympathetic to struggling artists, and as a friend,I did it even though I had reason to believe he would be aroused. (I was not as decrepit then as I am now.) He was discreet, knowing that I didn't roll that way, and it just didn't matter to me what he might later do with the memories. I didn't ask; he didn't tell. There are co-workers of mine who really don't want to know what I do with my memories of them, and I'm not silly enough to tell them. If co-workers of mine, ignoring my advancing decrepitude, have fantasies of their own, I don't want to know (unless it's someone I've had fantasies about), but I don't mind, either.

Paul Thomas said...

I think you're complicating the obvious here.

The reason we are viscerally opposed to pedophiles working in schools, foot fetishists working at Foot Lockers, and generally skeevy men working as gynecologists is not that the act of sexually objectifying someone is inherently harmful. That's illogical; what someone doesn't know literally cannot hurt them.

What CAN hurt them is a "controlled" pedophile/foot fetishist/skeevy man who loses control. People aren't rational actors, and it's trivial to point out that sexual desire sometimes causes people to do silly, stupid, and oftimes harmful things. Putting someone in a position to wrongfully act out their fantasies makes it more likely that they will do so. As a matter of pure Bayesian inference, one should not hire a foot fetishist as a shoe salesman because to do so makes one more likely to be justifiably sued for negligence.

Moreover, and I think this is a key point, the fetishist him/herself should not want to work in such an environment either. Like putting cookies in a jar on a high shelf, putting some distance between you and the object of your desire will in most instances actually facilitate the rational (and lawful) enjoyment of it. I know I would not want to be constantly tantalized at work with seemingly close, yet legally unobtainable, opportunities for pleasure. That sounds very much like torture (and indeed, Tantalos of the Greek myth from which the word "tantalized" is derived was subjected to precisely such a torture).