Quid pro quo harassment is the use of an organization’s power by some of its members acting as petty tyrants, to dole out advantages or disadvantages to selected client-victims, often through a combination of fraudulent representation and insinuated coercion, so as to induce those client-victims to submit to a relationship of paternalistic patronage under the tyrants, whether within or outside organizational policy bounds, instead of operating within a lawful relationship subordinated to the equal rights of all under standard, fair, consistent and accommodative treatment of all, within the constraints of organizational policy.
Quid pro quo harassment discrimination achieves its coercion by leveraging the stereotype of an historically subordinated category of people as being at the disposal of members of another category, where “at the disposal of” them means subservient to them by virtue of a presumption of consent, a propensity to consent, a duty to consent or a moral or medical necessity to consent to a condition of minority or servility to them. The patron-perpetrator could not possibly formulate the intent to transact the quid pro quo under any semblance of good conscience without the justifying premise of that stereotype being applied to the client-victims.
Thus the very act of quid pro quo patronage, by its tacit reliance on even the mere perception or cognition of the client-victims as being suitable for the inferior position in that patron-client relationship, demonstrates its invidious intent to subjugate the client, and therefore packs within it the self-evidently conscious animus, even if it is not a self-acknowledged or self-examined animus, necessary to satisfy the conscious intent requirement of discrimination law, on the part of the patron-perpetrator, to harm the client-victim by stripping the client-victim of the client-victim’s fundamental rights as a person under the U.S. Constitution.
This presumption of the suitability of the client-victim to the client role in the patron-client relationship may or may not be shared by the client-victim, but whether or not it is shared has no bearing on the self-evident mens rea of the perpetrator. This is why even enthusiastically willing participation by the client in the relationship does not mitigate the severity of the harm done by the patron-perpetrator, for the harm in unlawful discrimination is not primarily to the individual person, but to the very integrity and viability of the republican form of government itself, and the principle of comity among the several states which quilts together jurisdictions with disparate community standards and binds the states together into a republican federation, rather than into a mere republican confederation.
In the U.S., stereotypes of any segregated subordinated class, such as a marked race, creed, sexual orientation, gender identity or religion, boil down to a presumption of its moral divergence from the common law standard of “community standards,” which often translates into a perception of the marked category’s increased propensity for wilful, even inveterate, violation of state or municipal law, in regard to personal behavior and conduct both in public and in private. The moral fabric of the society is seen as depending upon the exclusion of marked individuals from family and social intercourse with the unmarked, along with their arms-length group subordination.
Stereotypes of any integrated subordinated category such as the marked sex, female, and the marked life stages, child and elderly, differ from those of any segregatonist stigma in that they boil down to a presumption not of its moral divergence from, but rather its moral necessity for the maintenance of the common law standard of “community standards,” which often translates into a perception of heightened severity in the negative social impact of the marked category’s violation of state or municipal law, in regard to personal behavior and conduct both in public and in private.
Thus any morally profligate or depraved woman, child or senior citizen is seen as a greater individual menace to society than an equally profligate or depraved adult non-elderly male. The moral fabric of the society is seen as depending upon the careful integration of marked individuals into rituals of family and social intercourse with the unmarked, through their arms-embrace intimate individual and group subordination to unmarked individuals and groups.
A quid pro quo harassment transaction cannot be said to be a trade in the sense of a valid contract because of the coercion involved, and might best be referred to as a pseudo-exchange. If the question arises as to whether there is always an unequal pseudo-exchange, or even sometimes a pseudo-exchange that results in apparent net advantage to the client, then a counter-argument could be that leveraging an indvidious stereotype always makes the pseudo-exchange result in net disadvantage to the client-victim. In any case, the pseudo-exchange is not a true trade because the patron controls both sides of the bargaining.
The very act of perpetrating quid pro quo harassment demonstrates its discriminatory intent because one would not feel a need to pressure someone into accepting paternalistic patronage unless one presumed that they were incapable of making a different, even contradictory, decision of equal validity to the coerced decision, if left to choose independently. Unlike an act of discrimination justified by any standard of review in relation to state interest, quid pro quo harassment colored by state power presumes a state interest not in implementing differential treatment, but rather, in persuading members of a targeted class to believe in, or at least act in accord with the presumption of, or in the conveyance of, their own moral inferiority, and is therefore a violation of, respectively, the Establishment Clause, the Free Exercise Clause or the Free Speech Clause of the First Amendment.
Class-based civil rights legislation fails to address the intersectionality of discrimination, and thereby fails ultimately to protect the individuality of each person’s contribution to the sovereign will of the people. Quid pro quo harassment under color of state power against an individual on the basis of any characteristic, even a unique one, and even an accurately descriptive one, still violates one of the three clauses of the First Amendment mentioned above.
If I patronize you based on the presumption that you alone, merely because you are you, are mine to subordinate, then I am still violating your First Amendment rights, even if no membership criterion except the pronoun “you” directed at you, can be articulated to define the class of one to which you belong, and for which I am regarding you as my inferior.
Surely to be persecuted as a class of one, and to have no logical means of escape from that category, is prima facie more invidiously discriminatory against you than if you belonged to a larger class from which you have no currently effective and available biological means of escaping. In fact this ultimate form of discrimination is explicitly forbidden under the U.S. Constitution, where it is called a Bill of Attainder. It is also deemed irrational in logic and rhetoric, where it is referred to as an ad hominem fallacy or attack.
It seems unlikely that the intent of the framers of the U.S. Constitution and its amendments, and even less likely that the contemporary requirements of republican government, could be or could have been to forbid state-sponsored discrimination against certain classes and against all individuals, but not to forbid it against individuals in other classes. This deficiency in the original U.S. Constitution was remedied with the First Amendment, and we should start citing it to strike down any exercise of state-funded or state-enabled patronizing selective tyranny.
I do want to clarify, in closing, that I am not saying that taking a patronizing attitude towards someone is in itself discrimination or a violation of religious or expressive freedom. I am saying that exercising state power on the premise that a patronizing attitude towards someone is justified does:
- meet the definition of intentional discrimination with malicious intent
- violate the First Amendment to establish religion, because to act upon someone on the presumption of that person’s moral inferiority is to attempt to indoctrinate that person and others around them into believing in that person’s moral inferiority
- violate that person’s right of free exercise by suppressing that person’s presumptive freedom to believe in one’s own moral equality with others
- violate that person’s right of free speech by suppressing that speech through irrational ad hominem attack
- violate separation of powers, because it amounts to an administrative ad hoc minting and execution of a Bill of Attainder.
- effectively violate the U.S. Constitution’s prohibition on Bills of Attainder.
Where state power is not implicated, as with a host to guests at a freely attended private dinner party where no business relations occur, there is no violation of civil rights or the First Amendment. Contracts are instruments of state power, however. So wherever contractual relations are negotiated, transacted or performed, patronizing action affecting contractual relations does violate civil rights and the First Amendment.
The majority in Lochner v New York correctly struck down regulatory state action aimed at curtailing patronizing action by employers towards employees because it was itself a patronizing action by state officials towards employees. However, it should have created a safe harbor for state governments to curtail patronizing action by employers without taking patronizing action against employees, by allowing the state instead to take patronizing action solely towards employers. Employers were forcing bakers to work an unsafe and unreasonable number of hours per day, and were patronizingly disregarding bakers’ moral protests against this economic coercion, backed as it was by state power limiting corporate liability and providing state-provided infrastructure, utilities and police and fire department property protection. Corporations, and even unincorporated businesses, all rely on state police powers, special state-granted privileges and immunities, and state subsidies to operate.
All commerce and all enforceable contractual relations operate under state patronage. States have every right, therefore, to take patronizing action towards commercial enterprises, which are themselves the mere construct of state patronizing action to begin with. The state, therefore, has the right to impose a regulation on bakeries that revokes the charter of any corporation, or revokes the business license in regard to safety and health regulations, of any bakery that employs a baker for more than ten hours per day. This does not patronize the bakers, who can work more than ten hours per day if they choose, by working at more than one bakery.
The majority in West Coast Hotel v Parrish wrongly upheld a law taking patronizing action against employees. A minimum wage law that forbids employees from working under a certain wage is patronizing towards the employees. However, a law forbidding employers from paying lower than a minimum wage, but allowing employees to extend credit for a deferred percentage of wages under reasonable terms to the employer as part of the employment contract, would properly exercise patronizing action towards the employer while not doing the same to the employee, and still serve the state interest in blocking patronizing action by the employer towards the employee.