If “Cancel Culture” Is About Getting Fired, Let’s Cancel At-Will Employment

Moshe Z. Marvit and Shaun Richman July 29, 2020

(Photo by Justin Sullivan/Getty Images)

You know what should be can­celed? The legal right of most boss­es to fire you for a good cause, bad cause, or no cause.”

That sta­tus quo is so wide­ly accept­ed that some pro­gres­sives don’t think twice about appeal­ing to the author­i­tar­i­an pow­er of boss­es in the pur­suit of social jus­tice: Many high pro­file social media cam­paigns have been employed to get peo­ple who are caught on video com­mit­ting racist acts in their every­day lives fired from their jobs. But the desire to hold racists and sex­ists account­able — or the relat­ed strug­gles against sex­ism, homo­pho­bia and fas­cism — need not be in con­flict with the prin­ci­ples of work­place rights.

So-called can­cel cul­ture” is not well-defined, but its crit­ics fre­quent­ly use the moniker to refer to an activist pro­gram of mak­ing indi­vid­u­als who harm their neigh­bors or cowork­ers with acts of racism, sex­ism (and worse) account­able through expo­sure and de-plat­form­ing — includ­ing attempts to get them fired. Lib­er­al crit­ics have been more like­ly to raise free speech con­cerns than any about work­ers’ rights, while left­ists are like­li­er to argue that free speech doesn’t mean free­dom from the con­se­quences of speech.

Depend­ing on what web­sites you read, can­cel cul­ture” could be por­trayed as the biggest threat to soci­ety out­side of a pan­dem­ic with no end in sight, a cra­ter­ing econ­o­my with tens of mil­lions of peo­ple out of work and fac­ing evic­tion, and uniden­ti­fied men wear­ing cam­ou­flage and car­ry­ing machine guns remov­ing pro­tes­tors from the streets of Port­land. The terms of the debate are so prob­lem­at­ic that Trump used the occa­sion of his July 4 speech to com­plain of left­ists that, one of their polit­i­cal weapons is can­cel cul­ture’ — dri­ving peo­ple from their jobs, sham­ing dis­senters, and demand­ing total sub­mis­sion from any­one who dis­agrees.” Then, because the con­cept of irony has appar­ent­ly died of com­pli­ca­tions from Covid-19, he con­tin­ued, This is the very def­i­n­i­tion of totalitarianism.”

Three years ago, we pub­lished an op-ed in the New York Times explain­ing how U.S. work­ers lack a basic right to their jobs that many work­ers in oth­er coun­tries enjoy as a legal stan­dard. As a solu­tion, we pro­posed a just cause right to your job” law as a bad­ly need­ed labor law reform. Since then, we’ve been encour­aged to see the issue turn up on many pro­gres­sives’ agenda.

In the debate between a right to your job and the need to de-plat­form big­ots, some have raised con­cerns that with­out the boss’s right to fire an employ­ee for any rea­son, racists and sex­ists would get more of a free pass at work. But this argu­ment miss­es what just cause” means. It doesn’t mean that employ­ees can­not be fired, it means they can’t be fired for a rea­son that’s not relat­ed to work. Racism, sex­ism, harass­ment and oth­er forms of con­duct in and out of the work­place that make oth­er employ­ees feel unsafe and vio­late poli­cies around respect and equi­ty are grounds for dis­ci­pline and ter­mi­na­tion — but are also sub­ject to due process. When you look at how just cause” plays out in areas where it exists — in the pub­lic sec­tor, under many union con­tracts, or in oth­er coun­tries — it’s clear that racists, sex­ists and harassers are, in fact, disciplined.

Beyond the pale and unacceptable

Amer­i­can work­ers stand apart from those in oth­er coun­tries, as they’re gov­erned by a body of judge-made law called the at-will” employ­ment doc­trine. The doc­trine is built around a sort of false mutu­al­i­ty, where the employ­ee has the lib­er­ty” to quit her job for any rea­son, and the employ­er has the right to fire her for any rea­son. The alter­na­tive, com­mon­ly nego­ti­at­ed in union con­tracts, is just cause”: the prin­ci­ple that an employ­ee can be fired only for a legit­i­mate, seri­ous, work-per­for­mance rea­son. In a union con­tract — where just cause” is com­mon­ly found — it is usu­al­ly com­bined with a pro­gres­sive dis­ci­pline sys­tem and a griev­ance pro­ce­dure to chal­lenge write-ups, sus­pen­sions and ter­mi­na­tions that a work­er feels was unfair.

Pro­gres­sive dis­ci­pline typ­i­cal­ly starts with ver­bal warn­ing of an infrac­tion or unsat­is­fac­to­ry per­for­mance. If, after that warn­ing, a boss thinks that the sit­u­a­tion has not improved, it may be fol­lowed up with a for­mal warn­ing in writ­ing, then a sus­pen­sion with­out pay and, final­ly, ter­mi­na­tion. The pro­gres­sive steps of dis­ci­pline reflect an increas­ing seri­ous­ness of infrac­tion, or inabil­i­ty to improve fol­low­ing warn­ings and reme­di­al sup­ports. Low­er lev­els of dis­ci­pline might be accom­pa­nied by new train­ing or coun­sel­ing to help the employ­ee improve. But — and this is a key point — while some mat­ters might go through the entire pro­gres­sion of dis­ci­pline, oth­er more seri­ous infrac­tions might go straight to a high­er lev­el of discipline.

A vocal or demon­stra­tive racist cre­ates a hos­tile work envi­ron­ment for her cowork­ers, and can be pun­ished — or even fired — under a sys­tem of just cause and due process. Let’s look at a few real-world sce­nar­ios. Casu­al­ly brows­ing through arbi­tra­tors’ deci­sions in New York, we found the case of a pro­fes­sion­al­ly-clas­si­fied employ­ee at a social ser­vice agency serv­ing devel­op­men­tal­ly dis­abled chil­dren and fam­i­lies, who made racist remarks about a super­vi­sor to a fel­low work­er that oth­er co-work­ers over­heard. Hor­ri­fied, the co-work­ers who were sub­ject to an unwel­come racist rant report­ed it to man­age­ment, com­plain­ing that they were not com­fort­able work­ing with such an unabashed­ly racist co-work­er. The racist employ­ee was fired. She brought the case to arbi­tra­tion, argu­ing that she was not giv­en pro­gres­sive dis­ci­pline and was fired with­out just cause.

The case went all the way up to arbi­tra­tion and a neu­tral third-par­ty upheld the ter­mi­na­tion. The damn­ing judg­ment: Under these cir­cum­stances, I find that the Employ­er act­ed rea­son­ably and had just cause to ter­mi­nate Griev­an­t’s employ­ment. In main­tain­ing a respect­ful, pro­duc­tive and safe work­ing envi­ron­ment for a diverse work­force as well as a prop­er atmos­phere for the Employ­er’s clien­tele, the use of cer­tain neg­a­tive lan­guage is beyond the pale and is unac­cept­able, mak­ing pro­gres­sive dis­ci­pline unwarranted.”

Amy Coop­er, the enti­tled white lady who called the cops on an African-Amer­i­can” bird­er in the Ram­ble of New York’s Cen­tral Park is a slight­ly more com­pli­cat­ed case. Coop­er was caught on video react­ing in a reflex­ive­ly racist way to a Black man who just want­ed to pro­tect some birds from get­ting gored by an off-leash dog, threat­en­ing to unleash some unpre­dictable police response upon him. She was quick­ly doxxed, and angry inter­net hordes demand­ed she be fired from the invest­ment firm that she worked for. The firm, Franklin Tem­ple­ton didn’t hes­i­tate to fire her to pro­tect its own rep­u­ta­tion. But even Amy Coop­er deserved due process. 

The tar­get­ed cam­paign against the invest­ment firm arguably made Cooper’s behav­ior in Cen­tral Park a work-relat­ed cause of dam­age to her employer’s busi­ness. More rel­e­vant is how uncom­fort­able her pres­ence in Zoom meet­ings and on email CC lines would be for her co-work­ers in the imme­di­ate after­math of her scan­dalous behav­ior. It would not be unrea­son­able for an employ­er to move direct­ly to a sus­pen­sion under those cir­cum­stances. It could be a sus­pen­sion with­out pay while she cooled her heels and con­sult­ed with any­one will­ing to rep­re­sent her in an appeal. If the employ­er decid­ed that her time away from reg­u­lar duties should be spent in implic­it bias train­ing or anger man­age­ment coun­sel­ing, then the sus­pen­sion could con­tin­ue some form of compensation.

If the goal of can­cel cul­ture” is to make racists afraid again” by mak­ing their despi­ca­ble behav­ior car­ry real-world con­se­quences, then Coop­er very near­ly los­ing her job would like­ly have been as effec­tive as her actu­al­ly los­ing her job. And under a just cause stan­dard, she prob­a­bly wouldn’t have been imme­di­ate­ly fired for this one ter­ri­ble offense.

Let’s look at one more exam­ple. In a wide­ly-dis­cussed piece for New York Mag­a­zine cri­tiquing can­cel cul­ture,” Jonathan Chait com­plained about the fir­ing of a polit­i­cal data ana­lyst named David Shor. In Chait’s telling, Shor tweet­ed a link to a paper by Prince­ton Pro­fes­sor Omar Wasow, which showed that non-vio­lent protests increased the vote for Democ­rats, where­as protests viewed as vio­lent increased the vote for Repub­li­cans. What fol­lowed was a Twit­ter debate between Shor and sev­er­al oth­ers con­cern­ing the pro­pri­ety of Shor post­ing the paper, where­in Shor was accused of racism and his employ­er was tagged. A few days lat­er, Shor was fired from his job.

Chait uses the Shor episode, along with sev­er­al oth­ers, to point to a left-wing illib­er­al­ism” that seeks to silence peo­ple with oppos­ing view­points. How­ev­er, in Chait’s exam­ples and his dis­cus­sion of the prob­lems, he almost whol­ly lets the employ­er off the hook. He engages in no dis­cus­sion of at-will employ­ment or how Shor’s employ­er should not have been per­mit­ted to fire him for a super­fi­cial­ly innocu­ous” tweet, but instead blames left­ists” and the far left” for caus­ing Shor to lose his job. Nowhere does Chait even men­tion that it was not the Twit­ter users who fired Shor, but his boss.

The prob­lem for Chait was a can­cel cul­ture” that includ­ed every­one except the pow­er­ful arbiter of speech who actu­al­ly can­celed his employ­ment — his boss.

The cause must be just

In her 2017 book, Pri­vate Gov­ern­ment: How Employ­ers Rule Our Lives (and Why We Don’t Talk about It), Uni­ver­si­ty of Michi­gan pro­fes­sor Eliz­a­beth Ander­son argues that we think too nar­row­ly about the pow­er and ubiq­ui­ty of gov­ern­ments.” We almost exclu­sive­ly focus on the pow­er of the politi­cians we elect while ignor­ing the far more coer­cive pow­er of our boss­es. All work­places have a sys­tem of gov­ern­ment. In the Unit­ed States, a union­ized work­place is like a con­sti­tu­tion­al monar­chy. We have some rights and can peti­tion the King. A non-union work­place is a dic­ta­tor­ship. Left-wing activists need to think twice before appeal­ing to the author­i­tar­i­an pow­er of a boss. Even if the cause of anti-racism is just, the boss’s arbi­trary author­i­ty to pun­ish his employ­ees for what they do in their pri­vate time is a mas­sive restric­tion of our civ­il rights.

Cor­po­ra­tions are only tem­porar­i­ly embar­rassed when right-wing employ­ees spark a con­tro­ver­sy. But cor­po­ra­tions actu­al­ly dis­like left-wing ideas and are usu­al­ly all-too-hap­py to find an excuse to quash them, leav­ing pro­gres­sive activists far more vul­ner­a­ble to cam­paigns of harass­ment tar­get­ed against their liveli­hoods. This can be seen in acad­e­mia, where there has been a mul­ti-year effort to police the speech of aca­d­e­mics — on any­thing from the 1619 Project to the BDS move­ment — that’s viewed as too far left. Crit­ics have tried to force risk-averse uni­ver­si­ty admin­is­tra­tors into fir­ing such pro­fes­sors for tweets that get caught in the right-wing media echo chamber.

All work­ers deserve just cause pro­tec­tions, and we need to fight for this right as a mat­ter of prin­ci­ple and self-defense. This can be done with­out endors­ing an alliance with the boss that enshrines a broad unchecked pow­er to fire at-will employees.

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