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Work friends: a commentary on Laura Rosenbury's "Working relationships".

There is a certain intimacy in the morning ritual at home. Grinding the beans and pouring that first cup of coffee leads to a few minutes sitting at the breakfast table with my partner and children. We plan the day's drop-offs and pick-ups, and talk about what is going to happen at school, what we will bring for show-and-tell this week or next. After getting myself and others dressed, there are a few minutes I enjoy alone with my daughter on the drive to her school. Even when it is silent time, it is intimate time.

But when I park the car after the drop-off, walk to the train, and ride to work, a new intimacy starts--one no less intimate than the intimacy at home or in the car. I place a daily call to my best friend across the country, re-centering me as I prepare for the workday. That call does not end until I am well-settled in my office and my computer has booted up. Without this contact, connection, and site of care, I am lost.

Once I am re-centered and focused, work begins--and the community of support at the office carries me through the day. Sure, I will check in with good friends and family members from time to time, whether to manage logistical matters or to get someone's perspective from outside the workplace about an important matter. But the bulk of my hours at the office only works because co-workers make them possible, pleasant, and productive. Even when the co-workers in the offices next door talk too loudly on the phone, they are my people. The order and consistent support in my office provides a respite and tranquility from the chaos that is home life with young children. Although the pictures of my family on my desk suggest that intimacy happens elsewhere too, an important part of me finds expression only at work: I am adult, actualized, unencumbered. For several hours a day---on days with no emergencies, anyway--I do not have to be a parent, spouse, or son.

This is a typical pattern of intimacy for many people throughout the day, and Laura Rosenbury's pathbreaking research and writing remind us of the ebb and flow of our intimate lives, always reinforcing just how much intimacy takes place outside the home: in friendship, in school, and at work. (1) Her latest effort is about work specifically, (2) a domain underexplored as a site of intimacy. That intimacy can take many forms: sexual or nonsexual, hierarchical or equal and reciprocal, supportive or jealous and undermining. Sometimes it can be all these things simultaneously, or it can move fluidly among these forms. Ignoring these realities about the structure of care and intimacy in our lives, and assuming that care and intimacy happen only at home or only in the most private spheres, is no longer a viable way forward. Assuming that work is a site of production alone, and not a place of care, is no longer supportable by all we now know about what happens there.

Still, knowing that work is also a site of intimacy does not tell us--as lawyers and public policy designers--what should change to accommodate this new knowledge. Rosenbury rightly emphasizes that this deeper understanding of intimate networks at work should enrich and modify our pursuit of antidiscrimination norms in the workplace. (3) On the one hand, we might wish to allow friends to prefer one another at work in order to reinforce the social institution of friendship that does so much to sustain us. On the other hand, the dangers of homophily--the robust sociological finding that we tend to sort ourselves into intimate networks of people like ourselves (4)--become apparent when we see that courts are less likely to find sex-based or racial discrimination when someone at work prefers a friend, even though those preferred friends are most likely to be of the same race, gender, religion, sexual orientation, and nationality as the ones defending themselves from charges of discrimination. Rosenbury focuses us on this dilemma, (5) but doesn't furnish us with any comforting answers yet.

In previous work, I identified homophily and its tendency to reinforce segregation as a general reason to oppose any agenda of "friendship promotion." (6) But I was far too dismissive then about how homophily could function as a true threat to liberal values in the average antidiscrimination case, and I was far too optimistic that sensitive policy design could easily find a way out of this most basic puzzle. I have no great insight about how to resolve this dilemma, but I am eager to see Rosenbury's forthcoming efforts in this area. Knowing that life-sustaining care happens at work complicates a focus on gender and racial hierarchy and sexual harassment, which pervades the law of the workplace.

In the spirit of this forum, however, I have two thoughts to share to supplement Rosenbury's provocative (though precatory) work in this volume. My hope is that these comments are useful to the ultimate research agenda Rosenbury will pursue in forthcoming papers about intimacy in the workplace.

I. CO-WORKERS MAY BE A DISTINCTIVE TYPE OF INTIMATE RELATIONSHIP

A co-worker and I recently completed an empirical research project and related working paper that produced a potential accidental discovery on the subject of co-workers and the law. (7) In short, Hadar Aviram and I were trying to determine if the way people tend to perceive their disputes with others varies by relational context. (8) That is, we were curious whether people were more or less likely to classify problems with others as legal or nonlegal disputes depending on whether the dispute was from within an intimate or more attenuated relationship. Law-and-society scholarship suggests that we will be less likely to treat disputes with good friends transactionally or legally, but there is little empirical research that provides evidence one way or another. (9) Although we were principally interested in ascertaining whether there were differences in our perceptual apparatuses from within good friendships as compared to "mere" acquaintanceships, our research unexpectedly found that the "coworker" relationship produced a statistically significant impact on whether people perceived a dispute as being best described as a legal one (rather than a non-legal one)--and the co-worker relationship was positively correlated with viewing a dispute as legal. (10)

We conducted an experiment with a vignette survey design, asking people about five hypothetical disputes with associates, varying the relational context in which the dispute arose. (11) We recruited 1,009 diverse respondents from around the country and presented them with five different scenarios: an associate failed to repay a $10,000 loan; an associate stole a business idea; an associate rented the respondent's home at a favorable rate and then sublet it for a windfall profit; an associate borrowed the respondent's car and accumulated parking tickets without paying for them; and an associate failed to purchase joint season tickets even though it was his or her turn to do so in a rotating pool. (12) Respondents received all of the scenarios in a randomized order, with the relational context of the relevant associate engaged in the "wrong" also being randomized among three choices: "acquaintance," "good friend," and "coworker." (13)

When we asked respondents about how they would best describe their feelings about these "wrongs," we classified their responses into "legal" and "nonlegal" perceptions about the disputes. (14) If a respondent said that the situation was best described as a "personal disappointment" or a "moral failure," we coded the response as a "nonlegal" perception of the dispute. (15) If a respondent said that the situation was best described as a violation of a "deal" or a "contract," we coded the response as a "legal" perception of the dispute. (16) Our primary test was designed to see if "good friends" behaved any differently on this dimension of perception from "acquaintances." (17)

Perhaps surprisingly, being in a dispute with a "good friend" had no statistically significant impact on how the dispute was perceived by respondents. (18) The "scenario type" had a statistically significant effect on the perception variable for all of our scenarios--but "good friends" and "acquaintances" did not differ in how they conceptualized the disputes. (19) No demographic indicators were statistically significant either: neither one's gender, race, income, age, education, surroundings, sexual orientation, nor the respondents' stated number of friends affected their perception of the dispute as legal or nonlegal in statistically significant ways. (20)

The one variable that did matter in statistically significant ways--other than the scenarios--was being a co-worker. (21) When respondents were presented with disputes with a "co-worker" (rather than disputes with a "good friend" or "acquaintance"), respondents were more likely to classify the dispute as legal in statistically significant ways. (22) Although we had not set out to study co-workers (in part because we had not yet read Rosenbury's urgent call to spend more time thinking about the co-worker relationship), we stumbled on this finding that calls for more empirical testing and analysis.

To be clear, our regressions tell only so much about how our respondents think about their co-workers on average. Since we were mostly interested in comparing the "good friend" category to others, we did not collect any information about respondents' work environments or give more information to respondents about the nature of the underlying relationships. Undoubtedly, there are many different kinds of co-workers: co-workers that are our bosses, our underlings, our good friends, our lovers, our "work wives," our mere acquaintances, and our sworn enemies. We gave respondents no more information other than co-worker status, so we cannot be certain that the relational context (or what dimension of the relational context) had the salience in the mind of the respondent to refract his or her perceptual apparatus the way it did on average. Still, the fact that we found statistical significance on the co-worker variable does tell us that our respondents, on average, tended to see disputes with coworkers as more legal than nonlegal.

All this suggests for scholars like Rosenbury seeking to reframe the workplace as a site of intimacy is that the type of intimacy that exists in the workplace may already be circumscribed by a transactional ethos that cannot be wished or regulated away. Obviously, the measurements that appeared in an experiment seeking to test very different hypotheses are not reliable enough to enable the drawing of strong conclusions. But there is something intuitive that we were likely learning from our respondents: people easily see their co-workers as partners in legal transactions in a highly regulated environment. They are more likely to perceive interactions with coworkers as transactional, even though they might view such interactions as nonlegal and non-transactional if they were to happen with someone identified as a good friend or mere acquaintance. (23)

This does not necessarily mean that there is "less" intimacy or a lesser form of intimacy in the workplace. Nor does it mean that transactional thinking about intimacy is reserved only for the coworker relationship; many intimate relationships can potentially be commodified. (24) Rather, it means that we probably should not collapse all forms of intimacy into one supervening category: the intimacy within a good friendship may be different from the intimacy within the home, which may be different from the intimacy at the workplace. Calling them all intimacy (Rosenbury is right that we should) (25) should not let us lose sight of potential average differences among them. Any sophisticated institutional design project geared to respect intimacy in all its forms cannot blur distinctions among forms of intimacy--even if it will require complex Venn diagrams to sort out all the possible interactions between forms. We do not need to think of one domain as having more or less intimacy--or putting one form on a pedestal over others--to appreciate that forms of intimacy differ in important ways to which a design project should attend. (26)

To use a somewhat mundane--but hopefully salient--case study, consider Facebook's introduction of "groups." (27) The traditional social network is "flat," insofar as you must make all disclosures to your entire network. (28) Facebook's new effort in understanding how people actually prefer to live their lives seeks to facilitate the segmentation of one's undifferentiated "friends" into different spaces, (29) where different kinds of intimacies can flourish. That I would share a picture of my drunken self with a certain group of friends rather than another does not mean I am necessarily closer with that group. A serious and personal meditation on my professional life that I would share with a group that included co-workers (but excluded my drinking buddies) may be just as intimate, but in a different way.

In short, to focus and elaborate on the intimacy outside the home tells us something important, but we have a lot more to learn about how intimacy is distributed outside the home and how those intimacies compare to one another. (30) We probably already know enough to see that we cannot treat the heterosexual and nuclear family as the only site of intimacy that the law should recognize and regulate. But getting from there to a sensible set of policies and rules to respect multifarious forms of intimacy is probably a long road. I am eager to watch and learn from Rosenbury's meandering hike in this difficult terrain. (31)

II. THE SPATIAL FLEXIBILITY OF THE WORKPLACE

Not only must we take care to ensure that we draw the contours of workplace intimacy correctly and accurately, but we also likely need to be careful about what we mean by the workplace itself. It is tempting to draw the circle of workplace intimacy in spatial terms; after all, it seems like a physical place. For there to be intimacy, we might reasonably demand, as Aristotle did, that people actually see one another and inhabit one another's space (32): it is hard to perform critical support functions without being in a colleague's face. Yet, given the modern organization of work, it is likely that the boundaries of work--and who counts as a work friend--probably leave the building, so to speak. Those who telecommute have work friends, too, but that intimacy might be happening in the home (albeit through technology).

There are a few examples of spatial flexibility, some of which have salient legal ramifications. The first two are in important work by Paul Ingram. With his co-authors, Ingram does not focus attention where most sociologists have (and where Rosenbury seems to be in her recent essay)--that is, in the physical space of the work environment, or what we might call intra-work networks of support and care. Rather, Ingram's two major case studies focus on interwork networks. In one case study, Ingram focuses on ship building companies on the Clyde River over more than two and a half centuries, and shows that some important businesses actually seem to need interwork friendship ties to survive. (33) Although the direct relevance to law is seemingly attenuated here, the case study suggests that if we only focus on the physical space of the workplace as the site of the special intimacy of work friendship deserving of protection, we will fail to capture all forms of work-related friendships that furnish a kind of care of great social significance. This applies not only for "horizontal ties" between competing firms, but also for "vertical ties" among buyers and sellers, whose relationships are also important in understanding what kind of legal regime best supports those transactions among intimates. (34)

In a second case study involving the hotel industry in Sydney, Australia, Ingram and a co-author find that friendships between managers at competing firms seem to improve firm performance through enhanced collaboration, better information exchange, and less time wasted on competitive behavior that undermines effectiveness. (35) They estimate that "each friendship with a competitor contributes approximately $268,000 to the annual revenue of a typical hotel," and that "[i]n total, the observed friendship network augmented the annual revenue of the 40 hotels ... by roughly $70 million." (36) To be sure, sometimes the increase in revenue comes at the expense of the customer, and Ingram's work suggests that antitrust law may need to think about friendships in interwork networks if its regulatory strategies are to succeed. Although not enough empirical work has been done to determine just what portion of the enhanced firm performance is a net social gain for all and how much is not, we do know that sometimes the customer gets better service and useful referrals because of the relevant ties. (37) More attention to these kinds of friendships--which happen "off-site"--is probably necessary for legal institutional design. (38)

A third example of care networks in the workplace that are closer to interwork ties than intra-work ties comes from the field of corporate law. For many reasons, the "independence" of the directors of corporations is something in which the law can take an interest (39)--and something that is important to know more about for corporate governance design. (40) Although from time to time courts have tried to pursue just how close an "independent" director must be to a CEO for it to be legally relevant, recent work about the effects of "social ties" on governance has suggested an urgent need to learn more about what networks of care do to inform corporate decision making that perhaps ought to be driven more by the needs of shareholders than the needs of friends. Where the law can make good interventions and still promote the friendships that not only oil the wheels of commerce but also furnish us with our sense of self is a big mystery for those of us working in the "friendship and the law" arena. Rosenbury's work is likely to contribute to this practical conversation about corporate governance and legal design, so long as she is willing to contemplate relationships that happen in the workplace broadly conceived, where the "place" in workplace is not strictly geographically circumscribed. Independent directors are, by definition, outside the workplace, and yet their intimacy at work has substantial legal and governance consequences.

In the final analysis, one could make this point (like the point before) in a more mundane way: Some of my co-authors have been in offices next door and some have been across the country. One of the co-authors across the country is also a daily source of support and care. The core point here is that it is not always clear how far the workplace and its version of intimacy extend. I am more intimate with a friend and co-worker three thousand miles away than a friend and co-worker three feet away. Defining the scope of the place that is the workplace seems to be part of the challenge Rosenbury has before her. I am hopeful that in her newer work Rosenbury will bring us a step closer to seeing how to engage this complex legal design project with humility, sensitivity, and some specificity. The task she has set for herself is not only a theoretical one, but also an immensely practical one. There will be no easy choices, but as with the first puzzle to which she introduces us--can we discriminate in favor of our friends even if it contributes to racial and gender stratification? (41)--we actually need guidance through rules and standards. That part of the design project can only be put off so long; not making choices is a form of regulation too, as Rosenbury has been telling us for years.

CONCLUSION

It is a huge credit to Rosenbury's primary research agenda that she is able to draw our attention to the reality of what is happening at work. Anti-fraternization rules and sexual harassment protocols notwithstanding, we make strong ties at work. Strong ties are critical to our functioning and, indeed, we could not easily be productive and happy without them. (42) It is crucial that the rules and standards we apply in the workplace come to grips with the structure of our intimate lives.

At the same time, however, our focus on strong ties risks losing sight of Mark Granovetter's theory of the strength of weak ties. (43) He highlights that most bridging relationships--relationships that will lead to new information and opportunities not already available within closed communities of close friends--are weak rather than strong ties. (44) Close friends, precisely because of the dynamics of homophily, will already have all the same information and opportunities at their disposal: close friendships create closed systems. But weak ties (generally something less than close friendship, such as "co-workership") can more easily expand our exposure to new things. If this is right, while we are thinking about design to accommodate the reality of strong ties, we must learn to respect the strength of weak ties as well.

Work is a very good "place," it would seem, to develop both. This balancing act of incentivizing and supporting both kinds of ties in the very same environment is critical to Rosenbury's current project, and I have no doubts that her attempts to balance all the complex policy questions in these areas will be as stimulating as they will be provocative.

(1.) Laura A. Rosenbury & Jennifer E. Rothman, Sex In and Out of Intimacy, 59 EMORY L.J. 809 (2010); Laura A. Rosenbury, Friends with Benefits?, 106 MICH. L. REV. 189 (2007); Laura A. Rosenbury, Between Home and School, 155 U. PA. L. REV. 833 (2007).

(2.) Laura A. Rosenbury, Working Relationships, 35 WASH. U. J.L. & POL'Y 117 (2011).

(3.) Id. at 138-41.

(4.) See, e.g., Miller McPherson et al., Birds of a Feather: Homophily in Social Networks, 27 ANN. REV. SOC. 415, 416 (2001).

(5.) Rosenbury, supra note 2, at 121-23.

(6.) See generally Ethan J. Leib, Friendship & the Law, 54 UCLA L. REV. 631, 670-74 (2007).

(7.) For the full study, research design, and findings, see Hadar Aviram & Ethan J. Leib, Are Friendship & the Law Separate Spheres'? A Vignette Survey Study (July 15, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1641314.

(8.) Id. at 1.

(9.) Id. at 34.

(10.) Id. at 25.

(11.) Id. at 5-11.

(12.) Id. at 7-9.

(13.) Id. at 7.

(14.) Id. at 7-8.

(15.) Id. at 11.

(16.) Id. We explain these coding choices--and what they conceal in the underlying paper.

(17.) We also tested respondents' recourse strategies in resolving the disputes, trying to assess how quickly respondents would turn to law within the varying relational contexts. The working paper reports these results. See id. We found relational context had virtually no effect on recourse strategies chosen by respondents (though we controlled for perception and treated the findings on perception as an independent variable in the recourse regressions). Id. at 14.

(18.) Id. at 23.

(19.) Id.

(20.) Id.

(21.) Id.

(22.) Our model was a logit regression with the p < .01, where the co-efficient on the co-worker variable was .195 with a standard deviation of. 075. Id. at 11 tbl.2.

(23.) Our findings are consistent with the general theme Of the juridification of the workplace in Lauren Edelman's work. See, e.g., Lauren B. Edelman, Christopher Uggen & Howard S. Erlanger, The Endogeneity of Legal Regulation." Grievance Procedures as Rational Myth, 105 AM. J. Soc. 406 (1999) (exploring the adoption of grievance procedures within workplace organizations and explaining how those procedures contribute to normative ordering of the workplace itself).

(24.) For the canonical text, see VIVIANA A. ZELIZER, THE PURCHASE OF INTIMACY (2005).

(25.) Rosenbury, supra note 2, at 134-38.

(26.) There is some recent work focusing on "break-ups" in workplace relationships and their distinctive characteristics. See Patricia M. Sias et al., Narratives of Workplace Friendship Deterioration, 21 J. SOC. & PERS. RELATIONSHIPS 321 (2004) (using employee narratives to examine the process of workplace friendship deterioration); Patricia M. Sias & Tara Perry, Disengaging from Workplace Relationships: A Research Note, 30 HUM. COMM. RES. 589 (2004) (studying the preference for communication strategies to avoid workplace relationships).

(27.) See Claire Cain Miller, The Many Faces of You, N.Y. TIMES, Oct. 17, 2010, at WK2; Miguel Helft, Facebook Lets Users Interact in Small Groups, N.Y. TIMES, Oct. 7, 2010, at B2.

(28.) Miller, supra note 27.

(29.) In my recent book, I discuss social networking and the relationship of "friending" practices to friendship. See ETHAN J. LEIB, FRIEND V. FRIEND: THE TRANSFORMATION OF FRIENDSHIP--AND WHAT THE LAW HAS TO DO WITH IT 24-32 (2011).

(30.) Plenty of scholarship usefully problematizes intimacy. See, e.g., INTIMACY (Lauren Berlant ed., 2000) (presenting a collection of essays detailing the "norms, forms, and crimes" of intimacy). My aim here is simply to remind those who rightfully demand that we see intimacy in the workplace that, for all we know, workplace friendship may be a sui generis form of intimacy.

(31.) To be fair, Rosenbury may aheady be one step ahead of me when she announces that she will be building a typology of kinds of work intimacies, suggesting that it is too essentializing to speak of the category of co-workers as a unique kind of intimacy. See Rosenbury, supra note 2, at 136-37. This is plausibly true, but I still suspect there is an average type of the co-worker relationship that the law would do well to better understand. See generally Patricia M. Sias & Daniel J. Cahill, From Coworkers to Friends': The Development of Peer Friendships in the Workplace, 62 W.J. COMM. 273 (1998).

(32.) ARISTOTLE, NICOMACHEAN ETHICS 216, 265 (Terence Irwin trans., 1985).

(33.) Paul Ingram & Arik Lifschitz, Kinship in the Shadow of the Corporation: The Interbuilder Network in Clyde River Shipbuilding, 1711-1990, 71 AM. SOC. REV. 334, 335 (2006).

(34.) See Ethan J. Leib, Contracts and Friendships, 59 EMORY L.J. 649, 654 (2010); Brian Uzzi, The Sources and Consequences of Embeddedness for the Economic Performance of Organizations." The Network Effect, 61 AM. SOC. REV. 674 (1996) (discussing "embeddedness" and concluding that firms organized into networks are more likely to survive); Brian Uzzi, Social Structure and Competition in Interfirm Networks: The Paradox of Embeddedness, 42 ADMIN. SCI. Q. 35 (1997) (developing an understanding of organizational embeddedness and networks); Paul DiMaggio & Hugh Louch, Socially Embedded Consumer Transactions." For What Kinds of Purchases Do People Most Often Use Networks?, 63 AM. SOC. REV. 619 (1998) (discussing preferences for selling to and purchasing from those with whom people have previous noncommercial relationships).

(35.) Paul Ingram & Peter W. Roberts, Friendships Among Competitors in the Sydney Hotel Industry, 106 AM. J. Soc. 387 (2000).

(36.) Id. at 417.

(37.) Id.

(38.) For Ingram's more general investigation of business friendships and their distinctive complexities, see Paul Ingram & Xi Zou, Business Friendships, 28 RES. ORGANIZATIONAL BEHAV. 167 (2008).

(39.) See Beam v. Stewart, 845 A.2d 1040 (Del. 2004) (discussing the independence of a corporate director). For legal commentary on social ties and their connection to director independence, see Lisa M. Fairfax, Martha Stewart & Director Independence, in MARTHA STEWART'S LEGAL TROUBLES 359, 367-71 (Joan MacLeod Heminway ed., 2007).

(40.) See, e.g., Byoung-Hyoun Hwang & Seoyoung Kim, It Pays to Have Friends, 93 J. FIN. ECON. 138 (2009) (observing that boards of directors, though financially or familially independent, may not be socially independent and that these social ties do affect aspects of business); Antony Page, Unconscious Bias and the Limits of Director Independence, 2009 U. ILL. L. REV. 237 (exploring how independent directors may be influenced by their own preferences); James D. Westphal, Collaboration in the Boardroom: Behavioral and Performance Consequences of CEO-Board Social Ties, 42 ACAD. MGMT. J. 7 (1999) (explaining that a lack of social independence among boards of directors can affect board involvement in the firm); Breno Schmidt, Costs and Benefits of "Friendly" Boards During Mergers and Acquisitions (Oct. 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1219102.

(41.) Rosenbury, supra note 2, at 120-29.

(42.) David Krackhardt, The Strength of Strong Ties: The Importance of Philos in Organizations, in NETWORKS AND ORGANIZATIONS: STRUCTURE, FORM, AND ACTION 216 (Nitin Nohria & Robert G. Eccles eds., 1992).

(43.) Mark S. Granovetter, The Strength of Weak Ties, 78 AM. J. SOU. 1360 (1973); Mark Granovetter, The Strength of Weak Ties: A Network Theory Revisited, SOC. THEORY 201, 214 (1983) [hereinafter Granovetter, A Network Theory Revisited].

(44.) Granovetter, A Network Theory Revisited, supra note 43, at 208.

Ethan J. Leib, Professor of Law, University of California--Hastings College of the Law; Visiting Professor of Law, Fordham University School of Law (Spring 2011). Thanks to Laura Rosenbury for conversations about these subjects over the years, to Patrick Sellers and Fatima Khan for research assistance, to Hadar Aviram and Joan Williams for comments on a draft, to Marion Crain for organizing the symposium that inspired these reflections, and to the Washington University in St. Louis's Law School for graciously hosting that symposium.
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Title Annotation:response to article in this issue, p. 117
Author:Leib, Ethan J.
Publication:Washington University Journal of Law & Policy
Date:Jan 1, 2011
Words:4793
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