Monochromatic Outlook employees must wash hands after contact with Washington Post

For the record, I am in favor of hand­wash­ing, espe­cial­ly pri­or to the prepa­ra­tion and/or han­dling of food.

I’m also good with laws that require restau­rants to post signs declar­ing that employ­ees must wash their hands.

That said, those are not the same two things. Which makes the teas­er for the Wash­ing­ton Post arti­cle Sen­a­tor says maybe restau­rants shouldn’t make employ­ees wash their hands a false­hood. Frankly, I find it more offen­sive than any of the remarks attrib­uted to Sen­a­tor Tillis in the arti­cle. Maybe there’s room for a sen­sa­tion­al spin in a head­line or teas­er, but an out­right fib is unac­cept­able.1

The indig­na­tion aimed at Sen­a­tor Tillis and the con­fla­tion of what should be done with what the law must enforce rais­es the ques­tion: what kinds of laws do the peo­ple who are out­raged at Sen­a­tor Tillis think would be pro­duc­tive? I some­times won­der how many peo­ple under­stand that laws are not dec­la­ra­tions of ide­al prac­tices but mech­a­nisms by which a gov­ern­ment can (or will, or even must) exact pun­ish­ment. It’s easy to casu­al­ly say, «there ought­ta be a law.» It’s yet anoth­er to insist that some­one be cart­ed off to jail by peo­ple with guns and badges for a par­tic­u­lar act. Yet ulti­mate­ly, they are the same.

No one in their right mind — and few of those even who are not — would send a bus­boy to jail for for­get­ting to wash his hands. But that is the ques­tion and ulti­mate­ly the dif­fer­ence between wrong and unlaw­ful: whether there is a State-enforced pun­ish­ment for the action or fail­ure to act? I do not believe there are any crim­i­nal or civ­il penal­ties for an employ­ee fail­ing to wash her or his hands before han­dling food.2

What is trou­bling about the Wash­ing­ton Post piece is how com­plete­ly it makes and rein­forces the idea that some­one being opposed to a law — ie being opposed to using the insti­tu­tion­al­ized threat of force to encour­age and/or dis­cour­age cer­tain prac­tices — is in favor of the prac­tice the law pur­ports to cur­tail. Sen­a­tor Tillis made it clear that he believes that pub­lic knowl­edge of a restau­ran­t’s san­i­tary prac­tices would per­mit the mar­ket to pres­sure restau­ran­teurs into enforc­ing food safe­ty prac­tices.3 Per­haps he’s right; this would be a good ques­tion to ask the Invis­i­ble San­ta Bun­ny. But it’s obvi­ous he’s not tak­ing a stand against food-ser­vice work­ers wash­ing their hands.

There’s noth­ing wrong with point­ing out one’s dis­agree­ment with Sen­a­tor Tillis, either on the specifics of the hand-wash­ing issue or the larg­er ques­tion of whether laws are the best mech­a­nism to pro­mote cor­rect prac­tices. But don’t claim he said some­thing he did­n’t to dis­cred­it him. It’s a cheap shot, and unnecce­sary: he’s a politi­cian. Sure­ly he can be dis­cred­it­ed on the basis of things he’s actu­al­ly said.


  1. To make this dis­tinc­tion even less sub­tle, writ­ing mis­lead­ing head­lines is wrong, but it (usu­al­ly) should­n’t be ille­gal. 
  2. In the State of Cal­i­for­nia the employ­er has the sole respon­si­bil­i­ty. «Any per­son who vio­lates any pro­vi­sion of this part […] is guilty of a mis­de­meanor. Each offense shall be pun­ished by a fine of not less than twen­ty-five dol­lars ($25) or more than one thou­sand dol­lars ($1,000) or by impris­on­ment in the coun­ty jail for a term not exceed­ing six months, or by both fine and impris­on­ment. […] The own­er, man­ag­er, or oper­a­tor of any food facil­i­ty is respon­si­ble for any vio­la­tion by an employ­ee.» Excerpt­ed from Cal­i­for­nia Health and Safe­ty Code Part 7. Cal­i­for­nia Retail Food Code Sec­tions 114395 and 114397
  3. Some would say that restau­ran­teurs are in a bet­ter posi­tion to under­stand food safe­ty than bureau­crats and leg­is­la­tors. Valid point, except that laws are usu­al­ly meant to pun­ish the less respon­si­ble mem­bers of any class of peo­ple those laws effect. «The good ones know bet­ter than the law­mak­ers,» is a poor argu­ment against weed­ing out the bad ones. 

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