Can an employer fire a publicly-avowed white supremacist?

Screenshot of rally photo from Huffington Post

While following developments concerning the horrific white supremacist/neo-Nazi/KKK rally in Charlottesville, Virginia this weekend, I asked myself, how would I like to be working with one of these lovely individuals? I then thought, if I was a manager, could I simply fire a white supremacist for participating in the rally?

The answer to the first question is easy and purely personal: No way would I want to share office space, a cubicle area, an office suite, a store floor, or a factory floor with one of these folks. And as an Asian American, I assume they’d feel the same way towards me.

The answer to the second question is more objective, complicated, and nuanced: Yes, in many instances the law would allow a manager to terminate a white supremacist for participating in the rally, but there are potential exceptions and twists, especially for unionized and/or public employees. Without pretending to be exhaustive on the topic, here’s a brief lowdown of relevant legal rules:

  • In the U.S., the rule of at-will employment is the presumptive legal hiring relationship. Among other things, it means that an employer can hire or fire someone for any reason or no reason at all, so long as it does not violate existing legal protections or obligations.
  • Fair or not, the rule of at-will employment allows employers to make hiring and termination decisions based even on many types of off-site, non-work-related activities.
  • Employment discrimination law prohibits discrimination against or harassing of other employees on the basis of certain characteristics, including race, sex, religion, color, national origin, age, and disability. This would be especially relevant if someone took their white supremacist messages into the workplace.
  • For private-sector workers, constitutional free speech protections do not apply to their jobs.
  • For public-sector workers, constitutional free speech protections may apply if they are speaking out on matters of public concern in ways that aren’t related to or internally disruptive of their work. (Yes, as noxious as it may be to some of us, it is arguable that a public-sector worker participating in this rally would be protected from termination under this set of legal rules.)
  • For unionized workers, collective bargaining agreements may provide additional substantive and procedural safeguards for wrongful termination, which may cover off-site conduct.
  • A minority of employees have individual employment contracts with so-called morals clauses that may be relevant in these situations. 
  • State law can matter in these situations. Connecticut, for example, has a broad employee free speech law that covers both private and public sector workers. California has a law that protects employees’ right to political expression.
  • If an employee engaged in violent behavior, especially that leading to a criminal conviction, their potential legal protections against wrongful termination would severely diminish.

Taking all these points into consideration, what does this mean for whether employers could fire workers for participating in one of these rallies on their own time? Bottom line is that many private-sector employees could probably be terminated without much risk of liability, but that public-sector workers may be able to raise constitutional free-speech protections. However — and here’s my lawyer’s analytical caution entering the picture — each situation would have to be evaluated individually. There’s no sweeping, catch-all rule that answers this question as yes or no for every situation.

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August 14 update: This topic has gained relevance due to efforts by certain civil rights/social media activists to “out” white supremacist protesters who are appearing in published photographs of the Charlottesville rally. Apparently the first protester to lose his job is a young man who worked at a fast food eatery, Top Dog, in Berkeley, California, per this piece in the UC-Berkeley student newspaper. 

If readers detect some ambivalence on my part on the use of such tactics, then their perceptions are accurate. I abhor and detest these white supremacists and their worldview. But I also have concerns over how social media can be used to go after anyone in ways that have significant consequences. I think we need to be very careful about determining one’s suitability for employment based on off-site conduct that, while deeply objectionable, may be legal. 

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Though slightly dated, the legal discussion in my 1998 law review article on the free speech rights of private-sector employees, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace” (Berkeley Journal of Employment and Labor Law), remains largely intact today. You may access it without charge here.

Tolerance and acceptance at work

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Journalist Joanne Richard kindly interviewed me for a Monster Canada piece on tolerance at work, timed to coincide with the United Nations’ International Tolerance Day on November 16. Here are some of my comments:

Workplaces have become more inclusive and tolerant in the past five decades, says Dr. David Yamada, internationally recognized authority on workplace bullying and employment discrimination. “More enlightened social attitudes and the messaging roles of employment discrimination laws have contributed to this progress.”

But recent divisive political antics may have set us back: “Survey data from the American Psychological Association indicate that the U.S. presidential election has had a negative effect on workplace conversations and that workers are divided by gender and generation, all to the detriment of overall productivity,” says Yamada, law professor and director of New Workplace Institute at Suffolk University Law School in Boston.

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Incivility, ostracism, bullying, and harassment remain serious problems in less-than-wonderful workplaces, says Yamada. “Of course, external individual events may fuel intolerance in the workplace as well. These range from the seemingly trivial, such as sports rivalries, to the more serious, such as politics, religion, and major public events,” he says.

Bad behaviour takes its toll, including increased interpersonal conflicts, greater stress and anxiety, and drops in individual and organizational productivity, he adds.

I gave these three suggestions for creating more tolerant, inclusive workplaces:

  • “Let’s give each other some room to express our differences, to vent, and to have a bad day.”
  • “Play and work by the Golden Rule.”
  • “Contribute to building organizational cultures of acceptance and individual dignity.”

Tolerance, acceptance, and taking a stand

I must admit that I sometimes struggle with the term “tolerance” in these contexts. When I think of the word, it means a sort of grudging, teeth-gritting exercise of breathing deep and keeping your mouth shut when something rubs you the wrong way, a sort of coping in relative silence for some greater good. I should know, as I’ve been there and sometimes go back there!

Acceptance of differences is a much more splendored next level. All things being equal, a live-and-let-live attitude is better for everyone. When I’m in that place, I can practically feel my blood pressure lowering.

However, I know that all things are not equal, which is why a pie-in-the-sky, happily ignorant form of acceptance won’t work for me. Among other things, working toward acceptance does not mean tolerating (or, heaven forbid, accepting) the intolerable or intolerant. Sometimes we must take a stand, hopefully in the most effective way possible.

Here in the U.S., we’re struggling with this in the aftermath of the presidential election. This struggle is manifesting itself in our workplaces, communities, and circles of friends and family. I have a feeling we’re in for a very bumpy ride, and the ways in which we relate to one another individually will make a big difference.

 

Disney fires, then rehires, intern who shared alligator directive

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Weeks after a toddler was dragged into the water and killed at Disney’s Magic Kingdom, a Disney manager posted this sign for its employees and interns:

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As reported by Travis M. Andrews for the Washington Post, Disney college intern Shannon Sullivan faced a crisis of conscience: “Sullivan thought the world should know, both about potential threats and about the company asking her and her colleagues to deny them.”

She shared her objections with others, though the story does not explain how she did so. Apparently stymied, she posted the picture above on Twitter, realizing that she was jeopardizing her place in a highly sought-after internship program.

Her supervisor soon learned of her tweet. Sullivan was fired from her internship and led off the premises.

When the Orlando Sentinel became aware of Sullivan’s termination, it contacted Disney management for comments. Andrews reports on what happened next:

The next morning, Magic Kingdom Vice President Dan Cockerell visited Sullivan himself to offer her internship back, which she accepted.

Disney removed the offending sign, claiming it was never authorized, the Associated Press reported.

So how about some lessons from this little story?

First, bravo to Shannon Sullivan for her courageous decision to speak out. True, we don’t know how she effectively expressed her concerns within the organization before going public with her tweet. Nevertheless, she was willing to sacrifice a plum internship for the sake of honoring her sense of right and wrong.

Second, a jeer and a partial nod to Disney for its handling of the situation. Clearly some manager at Magic Kingdom screwed up badly by posting a sign that valued superficial customer relations over guest safety. But at least a Disney exec, after the company was contacted by a newspaper, made the right decision and handled it personally.

Third, kudos to the Orlando Sentinel for showing us once again the power of the press. It’s not the biggest story to hit the media, but it’s important enough to get some coverage.

Non-conformists as change agents

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ProPublica, the non-profit public interest news organization, recently did a neat little feature on Dr. Adam Grant’s (U.Penn/Wharton) new book, Originals: How Non-Conformists Move the World (2016). Here’s the lede by Cynthia Gordy:

In his new book, Originals: How Non-Conformists Move the World, Adam Grant examines the circumstances that give rise to truly original thinkers and groundbreaking ideas. Throughout Originals, the Wharton School of Business professor shares stories from the fields of business, politics and sports, and his chapter exploring the psychology of speaking truth to power – whether it be federal whistleblowers, or a middle-level employee with an innovative idea – holds several lessons for investigative journalists and the people on which they report.

The feature includes a podcast with Dr. Grant interviewed by ProPublica reporter David Epstein. Here are some of the highlights:

  • On lower-level workers facing backlash for making suggestions: “People often confuse power and status, but power is about being able to influence others. . . . You see a really strong backlash when people try to assert their authority when they haven’t yet earned respect.”
  • On whistleblowers using internal channels: “We need much better internal channels that make it safe for people to blow the whistle. One of the most important steps that you can take is to model openness to that kind of information, and I think that means whistleblowers sometimes need to be called out and recognized for having the courage to speak even if they end up being wrong.”
  • On advocating for change internally vs. externally: “This is a tightrope walk. If you refuse to conform at all and you don’t buy into the system, it’s really hard to get taken seriously. . . . On the other hand, if you adapt too much to the world, then you never change it.”

Impossible

Okay folks, it’s impossible for me to be objective on this topic. I naturally identify with the role of non-conformist and have done so for as long as I can remember. In years past, this role was all too often accompanied by attitudinal rebelliousness. I am not completely free from such instincts, but I think I am much more constructive and mature about it than I was before.

Grant’s characterization of the “tightrope walk” specially resonates with me. It overlaps with the idea of what author and coach Judi Neal calls the “edgewalker,” an individual who builds bridges, works at the boundaries and soft edges, and operates in a visionary way.

Of course, it’s not all about starry-eyed idealism. As Grant’s work suggests, non-conformists can pay a price for being out front, with ridicule, pushback, and retaliation being among the costs. For this reason and others, I’m looking forward to spending some time with his book. I hope it will yield some lessons on how to be an “Original” as smartly, safely, and effectively as possible.

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Fear of retaliation: A prime indicator of organizational integrity and decency

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There are plenty of factors that go into what makes a good workplace, but I’d like to zero in on one measure: Do employees have reason to fear retaliation if they report alleged wrongdoings, such as discrimination and sexual harassment, bullying, unsafe working conditions, or ethical transgressions, or if they engage in legally protected activities such as union organizing?

The answer to this question speaks volumes about an organization’s integrity and decency. It all boils down pretty clearly: The good organizations don’t retaliate against individuals for engaging in legally protected conduct or for reporting potentially illegal or wrongful behaviors. The bad ones do.

Retaliation can take many forms, including:

  • Active, targeted, threatening, and prompt retaliation via overt and covert means;
  • Milder, usually indirect retaliation that makes it more difficult to establish a cause-and-effect relationship;
  • Taking a wait-and-see approach by watching the employee for the slightest mistake or transgression, and then blowing it up into a major performance weakness or act of misconduct;
  • Icing out the employee from various opportunities, while building elaborate, pretextual justifications for doing so; and,
  • Retaliating against the employee’s compatriots or friends.

Most protective employment statutes, such as discrimination laws, collective bargaining laws, and health & safety laws, have anti-retaliation provisions designed to protect those who report alleged violations and who cooperate with related investigations and legal proceedings. But prevailing on such claims is not easy, and the nastier the employer, the more likely it is to have raised hiding its motives to an art form.

A lot of retaliation takes the form of workplace bullying. However, establishing motive and causation under anti-retaliation provisions of various laws can be a challenge. It’s among the reasons why we need standalone legal protections against workplace bullying.

Freedom from fear is an important element of dignity at work. Praise be to organizations that truly practice this value.

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The article in the screenshot above is just one of an endless number of pieces online about fear of retaliation for whistleblowing and asserting one’s legal rights.

Disgruntled, tenured, and silent in the academic workplace

As some readers are quite aware, these are trying times at many universities, private and public alike. Finances are precarious, budgets are tight, and cutbacks are often the norm. At some schools, board members and senior administrators have turned into micro-managers. Highly paid senior administrators are proliferating at many universities, even as full-time faculty and staff are being laid off. Many will hire pricey consultants to help them do the work that they are not competent to do themselves, despite their hefty paychecks.

Instead of best practices winning the day, some of the worst excesses of private, non-profit, and public sector management seem to be festering in all too many institutions of higher learning.

In response, the voices of accountability, or at least those of the devil’s advocate, should be the tenured faculty. As I wrote in one of this blog’s most popular posts, tenured faculty typically have gone through a rigorous review process spanning many years, resulting in job protections much greater than those of the average worker. This includes the right and privilege of academic freedom, which is among the qualities that make colleges and universities different from many other workplaces.

In fact, the term “faculty governance,” a supposed bulwark of higher education culture and practice, relates directly to the exercise of academic freedom. It anticipates an active role for faculty in determining the future of an institution, and this may include questioning, probing, and criticizing proposed and adopted policies within the university.

But there’s a kind of hush…

All too often, however, certain tenured faculty remain silent. They may deeply object to what is transpiring around them, out of principle and/or self-interest. They also may enjoy additional institutional privileges, sometimes by dint of accomplishments, other times because of connections, and on occasion due to demographic status. If they would only speak up, they could make a difference.

But rather than jeopardize their privileges, they have nothing to say.

While others are questioning unwise and/or unfair practices and policies, they are nowhere to be heard. Oh, they may grouse in private, perhaps vehemently so. Maybe they’ll send a (private) e-mail of support to one of the “dissenters,” “rabble-rousers,” or “bomb throwers,” but when it comes to publicly aligning themselves with those who are sticking out their necks (sometimes on their behalf!), they stay mute.

If letters of protest are circulated, they may consider signing, but not until confirming that many others have signed on ahead of them. If a resolution criticizing a bad administrative move is being considered at a faculty meeting, they’ll wait a half second to see how others vote before raising their hand. If a close colleague or co-worker faces retaliation or termination and approaches them for help, they may express sympathy, while adding it’s a shame that there’s nothing they can say or do.

They obviously had the intellectual chops to get tenure, but in the aftermath of obtaining that brass ring, they’ve decided that it’s wiser to conduct themselves on a risk-free basis. If there are battles to be fought, let others step up to the challenge.

Over the years I have talked to faculty at many different universities about this dynamic. It is not uncommon, especially at more dysfunctional institutions.

The perks of silence

The disgruntled, tenured, and silent will stay in their offices, with fingers crossed that no one comes for them, while continuing to collect and enjoy the perks of silence.

The least admirable of these folks will kiss up to the very people whose actions they so (privately) criticize.

This is, of course, their right. Tenure does not oblige one to exercise the freedom of expression bestowed by that status. Nor does it prohibit anyone from stroking the egos of those they silently oppose. After all, why risk retaliation and sacrifice one’s privileges — earned or not — when others are willing to do so?

“Askhole” behavior in non-profits: An insightful and entertaining Vu

In a marvelously insightful and entertaining piece published on his Nonprofit With Balls blog, executive director Vu Le calls out non-profit leaders and organizations who are constantly asking their employees and other stakeholders for feedback and ideas, only to reject or ignore their suggestions over and again. He uses the term “askhole” to capture this behavior, and many who have experienced work life in this sector will find themselves chuckling in agreement.

Le begins by illustrating askhole behavior in an everyday social context. It’s hilarious:

Basically, you know that one friend who keeps coming crying to you about something, asks you for advice, and so you hit pause on Netflix, listen to them attentively, empathize, and give them reasonable suggestions, and then later you find out that they completely ignored you or did the opposite of what you recommended? That’s an askhole. Or someone who keeps asking for advice until they get an answer they agree with. That’s also an askhole.

Although Le is especially critical of the askhole dynamic confronting communities of color, it may apply in virtually any non-profit context. In essence, askhole behavior in the non-profit world promotes false hopes and leads to jaded attitudes, especially when it occurs repeatedly. In a line that jumped out at me, Le says, “We’ve been giving the same answers for, like, forever.”

Le does not merely curse the darkness. In his article, he offers good advice on how non-profits can avoid askhole behavior, such as “before launching some listening forum, check around to see what work has already been done,” and “if you insist on doing a listening process, get your org or foundation mentally ready and committed to trust the community’s feedback and act on it.”

So here’s the question for you non-profit dwellers: How many town meetings, “open door policies,” online surveys (helloooo, Survey Monkey!), strategic planning discussions, and coffee hours have you been invited to by senior administrators and perhaps board members? Of these, how many times have your concerns or suggestions been seriously considered, much less acted upon in an inclusive way?

Your answers will go a long way toward determining whether you have a healthy or dysfunctional organizational culture. They also will correlate strongly to the overall morale of rank-and-file stakeholders within your organization.

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Hat tip to Kayhan Irani for the Vu Le article!

Related posts

Myths and realities about working in the non-profit sector (2014)

One-way feedback: In-house employee surveys and the illusion of open decision making (2012)

“Strategic planning”: All too often, a time-sucking bridge to nowhere (2011)

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