A Better Remedy for Cancel Culture
To let Americans speak their minds without fearing for their jobs, we need to end at-will employment.
|Zaid Jilani||Jul 6, 2020||119||65|
The U.S. Constitution offers very broad protections for freedom of speech. While criticizing the government, or even waving the wrong flag, could get you imprisoned in any territory under Chinese rule, your right to freedom of expression is sacrosanct under the First Amendment—until you step into your place of work, that is. While the government is not entitled to punish political dissent, in most parts of America it is perfectly legal for your boss to fire you if they happen to dislike the person you voted for in the last election.
This restriction on political expression is especially harmful at a time when, nearly every day, somebody is accused of having transgressed against some commonly (or even not so commonly) held taboo. In many of these cases, employees—from senior staff at prominent institutions to working-class laborers—have been fired. Even outside of working hours, it would now be perfectly reasonable for most Americans to think twice before speaking their minds about hot-button issues.
In their attempts to remedy the most pernicious aspects of cancel culture, critics have mostly concentrated on advocating less punitive social norms. This is good as far as it goes. Our political culture will only become more liberal if we all stop demanding that people be punished or fired for imaginary transgressions. Yet, this emphasis on culture ignores the important role that legislative reform could play in defending the most vulnerable: If it were harder for employers to fire people for frivolous reasons, Americans would have less reason to fear that expressing their views might cost them their livelihoods.
The Problem with At-Will Employment
At the moment, most American workers are subject to “at-will” contracts. As long as their employers do not fire them on the basis of a narrow set of protected characteristics, such as gender, race, and sexual orientation, they can lose their jobs at any time, for any reason. Nor is there a due process requirement: Companies are under no legal obligation to investigate whether the ostensible reasons for axing an employee are grounded in reality. (The only state that categorically prohibits at-will employment, after six months on the job, is Montana).
The prevalence of at-will employment makes it easier for employers to engage in knee-jerk reactions to short-lived social media controversies. For instance, a Hispanic electrician working for the San Diego Gas and Electric company was fired for cracking his knuckles in a photograph because a social media mob believed that he was flashing a white power sign. The man who took the picture has since admitted that he probably misinterpreted the interaction, and thousands of people have now signed a petition, asking the electrician’s former employer to reverse the mistake. But since the employee has already lost his job, it will be hard for him to obtain justice. As in many other cases, both parties would have been better off if the law had required the company to afford due process to an accused worker before deciding whether or not to fire him.
There is a better alternative: Contracts negotiated by labor unions often provide so-called “just cause” protections for employees. The tests of just cause typically include questions such as whether the employee was forewarned of the consequences of his or her actions, whether the rules were applied evenly, and whether there was an objective investigation into the employee’s conduct. In other words, it forces employers to conduct a fair process before firing their employees, which gives the accused a real chance to defend themselves. If we really care about free speech and due process, these protections should be available to every American.
Opponents of these reforms have long argued that they would come at a heavy cost to the economy. But scholars who have studied the impact of wrongful discharge protections have obtained mixed results. One 2007 study of U.S. employers, for example, found that the introduction of such protections resulted in some loss of productivity, but also led to strong growth in overall employment numbers.
Stop Employers From Discriminating Against Views They Don’t Like
Just cause legislation would help to reduce the number of capricious firings. But, as long as bosses can legally terminate employees because they dislike their political views, such legislation would only go partway towards remedying the chilling effects on free speech. That’s why those of us who worry about cancel culture should also push for the inclusion of political affiliation in the rubric of anti-discrimination laws.
The Civil Rights Act has long prohibited employers from discriminating on the basis of race, color, religion, gender, pregnancy, or national origin. In June, the Supreme Court ruled that this provision also protects gay, lesbian, and transgender employees. But there are no equivalent federal protections to prevent employees from being disadvantaged because of their political views.
This is a missed opportunity, as the success of local ordinances mandating such protections has shown. In Washington D.C., for example, the Human Rights Act prohibits employment discrimination based on political affiliation, defined as “the state of belonging to or endorsing any political party.” As Edgar Njatou, Executive Director of Workplace Fairness, told me in an interview, this ensures that your boss can’t fire you if they “find out you voted for Hillary or that you’re a Republican.”
Seattle has even more ambitious protections for workers’ political views. Its laws prohibit discrimination based on “political ideology,” which is defined as “any idea or belief … relating to the purpose, conduct, organization, function or basis of government institutions and activities, whether or not characteristic of any political party or group.” But even this law mostly serves to protect people with relatively common political views. After the 2016 election, for example, local rental listings began to discourage Trump supporters from applying. “If you are a landlord,” city government spokesperson Elliot Bronstein, wrote in response, “you cannot discriminate on political status.” (Like other protections against discrimination, this does not apply to housemates, who share an apartment or living space.)
There are two obvious objections—both of which could easily be addressed. First, some organizations have a legitimate interest in ensuring that their employees share a broad worldview: It would make no sense, for example, to stop a political campaign group from discriminating against a job applicant who opposes the organization’s goals. Explicitly political organizations should therefore enjoy a carve-out from the stricture against discriminating on the basis of political beliefs (though they would still have to afford existing employees the due process protections guaranteed under “just cause” provisions).
Second, employers have a legitimate interest in protecting their staff from the hateful conduct of colleagues: Clearly, for example, no member of an ethnic minority should have to endure racist taunts at their place of work. But this could also be addressed through carefully worded legislation. Seattle already offers exemptions for political conduct that would cause “substantial and material disruption of the property rights of the provider of a place of public accommodation.” Employers also have an affirmative obligation to protect employees from racist harassment.
Balancing competing goods is one of the core purposes of any legal system. There is no reason to think that our laws could not protect the speech of political minorities, without hampering the operation of overtly political organizations or burdening ethnic, religious, or sexual minorities with the fear of harassment.
We Can Make It Happen
New employment regulations always face an especially tough uphill battle in Congress. But, though it will not be easy to win legislative approval for such reforms, every major faction of American political life has its own reasons for supporting them.
The left should be sympathetic to the wish to expand job protections for American workers, which lag significantly behind those of other developed countries. While conservatives are usually hostile to such regulations, they should recognize that these reforms would help to protect them against the growing influence of cancel culture. And philosophical liberals—those of us who believe in a pluralistic society that encourages ideological diversity—have the most principled reason to get on board.
Hatred of any form of wrong think now threatens the foundations of our social fabric. Since the stakes of public policy debates are high, it is understandable—and even admirable—for citizens to subject each other’s views to vigorous criticism. But, if ordinary people fear that a minor misunderstanding or a deeply held difference of opinion might cost them their jobs, freedom of speech—the cornerstone of any liberal order—is under serious threat.