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.

When boss behaviors fall short of bullying, but still prompt an “oy”

If we define workplace bullying as intentional, often repeated, verbal or non-verbal mistreatment of employee that causes mental or physical harm, then it follows that a lot of not-so-great behaviors fall short of that threshold. Bullying, as I’ve come to think of it, is targeted and usually malicious in nature. “Bad bossism,” on the other hand, is simply that.

I just read Adam Bryant’s New York Times interview of Barstool Sports CEO Erika Nardini, and I’m glad that I don’t work for her. (Barstool Sports, if you’re unfamiliar with it, is a “bro” site featuring lots of sports talk and photos of scantily clad co-eds.) While nothing in the interview necessarily cries out “bullying boss,” Nardini’s punishing management practices and assessments of humanity aren’t for everyone: 

1. She’ll run people into the ground in order to build a better Barstool.

I think I’m punishing. I have a large ability to grind. If I want something or if I believe in something or I think something should be done better, I will push and push until I exhaust people.

I really value stamina and drive. I am bad with stagnation and complacency. It’s not just about winning, but did we do everything possible to make something happen?

2. That includes being available 24/7, and she’s going to test that during your interview phase.

If you’re in the process of interviewing with us, I’ll text you about something at 9 p.m. or 11 a.m. on a Sunday just to see how fast you’ll respond.

[In response to the followup question of permissible response time] Within three hours. It’s not that I’m going to bug you all weekend if you work for me, but I want you to be responsive. I think about work all the time. Other people don’t have to be working all the time, but I want people who are also always thinking.

3. She’s got a single-lens, 90/10 view of humanity.

I had to learn, and I’m still learning, about the kinds of people on my team who can run in my system, which is pretty hard-driving.

…There were people who weren’t into it, and it took me a long time to learn that there are people who I call “90 percent players” and there are “10 percent players.”

The 90 percent players are superdependable. They work hard every day, and they’re amenable to whatever you want to do.

And the 10 percent people may not be great 90 percent of the time, but 10 percent of the time they’re genius, and they’re genius at the moment that matters.

It took me a long time to learn that there’s a beauty and a gift in the 10 percent people, and you have to be able to unlock it.

Oy, indeed.

It would’ve been great had interviewer Bryant followed up with a question about work-life balance, but we’ll have to imagine Nardini’s response. (I’d predict some variation on “work hard, play hard.”)

To be fair, Nardini is no different than any other CEO who expects their underlings to demonstrate fulsome devotion to their jobs. She’s merely among the latest to regard her management philosophy as worth bragging about. Of course, we’re used to hearing this stuff from certain male CEOs, so perhaps it’s a sign of ironic, umm, progress, that a female CEO is spouting more of the same.

Bureaucracy, administrative bloat, and organizational productivity

Writing for the Harvard Business Review, management experts Gary Hamel and Michele Zanini ask:

How pervasive is bureaucracy in your organization? How much time and energy does it suck up? To what extent does it undermine resilience and innovation? Which processes are more trouble than they’re worth?

To help tease out answers to these questions, Hamel and Zanini break down the costs of excessive organizational bureaucracy into these seven categories:

1. Bloat: too many managers, administrators, and management layers

2. Friction: too much busywork that slows down decision making

3. Insularity: too much time spent on internal issues

4. Disempowerment: too many constraints on autonomy

5. Risk Aversion: too many barriers to risk taking

6. Inertia: too many impediments to proactive change

7. Politics: too much energy devoted to gaining power and influence

But they don’t stop there! In their piece they also offer an assessment instrument, dubbed the “bureaucracy mass index,” that can help organizations compare respective levels of bureaucratic overkill. The instrument is specially for large private sector organizations, but smaller businesses, public agencies, and non-profit employers may find it useful as well.

Academic workplaces

Oh my, does this resonate for me as a denizen of higher education, where administrative bloat and top-down bureaucracy have sucked so much of the vitality out of colleges and universities, not to mention fueled skyrocketing tuition. A (London) Times Higher Education review of Benjamin Ginsburg’s The Fall of the Faculty: The Rise of the All-Administrative University (2011) captures a good chunk of this dynamic:

Administrators breed unless checked. . . . Administrative prestige is measured by the number of “reports” an administrator has, which is to say, how many people report to them. Deans need associate deans, assistant deans, deanlets and a bevy of secretarial staff, less to achieve anything truly useful than to enhance their prestige – and their salaries, because one’s pay goes up in proportion to the number of staff one directs.

It would be bad enough if the administrators were simply unproductive. . . . But The Fall of the Faculty regards many presidents, provosts, deans and their underlings as positively dangerous to the academic enterprise of teaching and research.

Ginsburg drew excerpts from his book to write a shorter piece on this topic — “Administrators Ate My Tuition” — for the Washington Monthly. (For two more good commentaries, check out these articles from The EvoLLLution and Chronicle of Higher Education.)

Administrators breed unless checked. What a brilliant line! How can those of us in bureaucratic work settings help to stop this needless bloat, unwise use of money, and harmful concentration of power?

Bad bosses: The consistent jerk vs. Jekyll & Hyde

Workers of the world, given your druthers, would you rather have a boss who is a jerk all of the time or just part of the time? Believe it or not, it may be easier to deal with the full-time version.

Jena McGregor, writing for the “On Leadership” column of the Washington Post, reports on a research study by Fadel K. Matta, Brent A. ScottJason A. Colquitt, Joel Koopman, and Liana G. Passantino published in the Academy of Management Journal, finding “that employees are less stressed and have more job satisfaction when their bosses are always unfair than when their boss is unpredictable.”

One part of the study involved a lab experiment with college students getting feedback from a boss in simulated work environments:

To no one’s surprise, those who got the consistently nice feedback fared best when it came to the heart rate monitoring. But those who consistently heard how much it sucks to work with them did better than those who sometimes heard compliments and sometimes got burned.

The second part of the study surveyed actual workers in a variety of work settings and found the same thing:

Again, employees who had unpredictable managers were more likely to be stressed, dissatisfied with their jobs and emotionally exhausted than those who said they were always treated unfairly.

The Jekyll and Hyde boss

These research findings dovetail with what we’ve heard for years about bad bosses, workplace bullying, and workplace incivility, namely, that the Dr. Jekyll/Mr. Hyde bosses may cause higher levels of stress and uncertainty than those whose behaviors are predictable and consistent. We tend to prefer certainty to uncertainty, perhaps even to the point of opting for a reliably jerky boss over one who offers kudos one day and rants the next. After all, many of us exercise such a preference in other human interactions, ranging from personal relationships to dealing with authority figures such as police officers.

So what lies beneath these Jekyll and Hyde behaviors? In a blog post earlier this year, business school professor Joel Brockner discusses a study by Szu Han Lin, Jingjing Ma, and Russell Johnson that offers two possible explanations. The first is “moral licensing”:

One is moral licensing, which is based on the idea that people want to think of themselves and their behavior as ethical or moral. Having behaved ethically, people are somewhat paradoxically free to behave less ethically, either because their prior behavior gave them moral credits in their psychological ledgers or because it proved them to be fine, upstanding citizens.

The second is personal resource depletion:

A second explanation is based on Roy Baumeister’s notion of ego depletion, which assumes that people have a limited amount of self-control resources. Ego depletion refers to how people exerting self-control in one situation are less able to do so in a subsequent situation. Ego depletion helps to explain, for instance, why employees tend to make more ethical decisions earlier rather than later in the day.

Of course, this also begs the question of whether too many employers hire too many bosses who have low levels of ethics and self-control to begin with, leaving a very thin margin of error in terms of everyday treatment of subordinates and peers. As I have mentioned frequently here, research indicates that the higher we go up the organizational chart, the more we find leaders who demonstrate anti-social and psychopathic qualities. Accordingly, the presence of bad bosses probably means that some employers are drawn to the wrong kind of people as potential managers and leaders in the first place. In such instances, they’re more likely to see Dr. Jekyll at the interview, with Mr. Hyde showing up for the first day of work.

“It’s not my responsibility”

(image courtesy of clipart kid.com)

A conversation with a friend last night and an episode of a TV crime drama I recently watched served to crystallize this line in my mind: “It’s not my responsibility.”

Naturally I thought about “It’s not my responsibility” and responses like it in the context of my bailiwicks: Workplaces, law and policy, and the community. But before I share some thoughts on that, let’s get a definition. The Merriam-Webster Dictionary defines responsibility as “the quality or state of being responsible,” such as a “moral, legal, or mental accountability.”

Okay, sometimes “It’s not my responsibility” is simply a truthful, accurate statement of circumstances and limitations. At work we may have defined responsibilities, and exceeding them or stepping over those of others could lead to chaos and disruption. The law establishes responsibilities and obligations, too, and exceeding those boundaries could lead to unwanted consequences. Family ties may mandate responsibilities legally and morally, especially based on closeness of relations.

Beyond that, however, there’s a huge realm of discretion where we can choose to accept or undertake responsibility or not. This may occur in the context of taking a stand, helping or protecting someone, or contributing financial support. When we exercise our discretion to take responsibility, we are making a commitment notwithstanding the lack of external obligation to do so. That commitment should be every bit as strong as an institutionally imposed mandate.

Despite religious chest-thumping by some, I have to say that we are in an age where serving as each other’s keepers does not appear to be in style. Whether in our workplaces or other communities and relationships, I hope that will change.

Psychopath CEOs, organizational culture, and workplace bullying clusters

“Okay, bosses, count off by fives…”

When talking about abusive work environments, it’s natural to focus on individual aggressors, bullies, and harassers — especially if you’re on the receiving end. However, we also know that bullying and mobbing behaviors are typically enabled by organizational cultures that promote, defend, and/or allow such mistreatment. In attempting to understand these two perspectives, it helps to go straight to the top: Look for a CEO, president, or executive director who embodies the worst of these qualities.

On this note, I’ve been meaning to write about a study conducted by Nathan Brooks (Bond U.), Katarina Fritzon (B0nd U.), and Simon Croom (U. San Diego), suggesting that roughly one in five corporate CEOs demonstrate psychopathic personality traits. As reported last fall by Michael Arria for AlterNet:

According to a new study, one out of every five corporate bosses is a psychopath.

The study surveyed 261 corporate professionals and determined that their “clinically elevated levels of psychopathy” were on par with the prison population. Nathan Brooks, a forensic psychologist at Bond University and researcher on this study, told ABC, “Their personality usually leads them to exploit every avenue open to them, whether it’s in a criminal setting, or within organizations.”

. . . According to Brooks, a certain “successful psychopath” has been allowed to rise in the corporate world, despite the fact that they’re more likely to break the law or engage in unethical activity.

In other words, it starts from the top. Good CEOs hire good mid-level managers and good HR directors. Toxic CEOs hire managers and HR staff who effectuate their abusive leadership practices. It rolls downhill from there, in either good or bad ways.

The bullying cluster hypothesis

For what it’s worth, the 1 in 5 figure makes sense to me. For example, in a 2013 post, I looked at various prevalence studies and assessments and concluded that “between 1 of 6 and 1 of 7 bosses may behave in a manner that causes underlings and other co-workers to think of them as psychopaths.” Close enough, yes?

The figure also may support a hypothesis I floated in 2012, namely, that some workplaces are “bullying clusters.” I suggested that “(b)ullying behaviors are not evenly distributed among all employers. Rather, bullying behaviors are disproportionately concentrated in a smaller number of toxic workplaces.” I further asked, “might the old chestnut, the “20/80 rule,” apply here? Could, say, 20 percent of our workplaces host 80 percent of the bullying?”

So…a 20 percent psychopath CEO rate…and a question speculating that 20 percent of our workplaces may account for 80 percent of workplace bullying. Maybe we’ve got something of a match here.

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Related posts

Is the “psychopath boss” theme overhyped? (2013)

Are some workplaces “bullying clusters”? (2012)

Is our psychologically ill economy fueled by psychologically ill business leaders? (2011)

Gaslighting at work

Gaslighting is a form of deliberate manipulation intended to disorient, confuse, and frighten those on the receiving end. Many discussions about gaslighting occur in reference to personal relationships, often in the context of domestic or partner abuse. However, gaslighting can occur in other settings as well, including workplaces. In fact, I predict that we’ll be hearing a lot more about gaslighting at work during the years to come, and I’d like to survey that waterfront.

Despite growing awareness of the term and its underlying behaviors, the idea of gaslighting is so rooted in pop psychology that there are no “official” definitions from more authoritative psychological sources. Indeed, the best definition that I’ve found comes from Wikipedia, a distinctly non-academic source:

…a form of manipulation that seeks to sow seeds of doubt in a targeted individual or members of a group, hoping to make targets question their own memory, perception, and sanity. Using persistent denial, misdirection, contradiction, and lying, it attempts to destabilize the target and delegitimize the target’s belief.

Dr. Martha Stout describes the origins of the term in her excellent book, The Sociopath Next Door (2005):

In 1944, George Cukor directed a psychological thriller entitled Gaslight, in which a beautiful young woman, played by Ingrid Bergman, is made to feel she is going insane. Her fear that she is losing her mind is inflicted on her systematically by Charles Boyer, who plays her evil but charming husband. Among a number of other dirty tricks, Boyer arranges for Bergman to hear sounds in the attic when he absent, and for the gaslight to dim by itself, in a menacing house where her aunt was mysteriously murdered years before.

Gaslighting steps

In a Psychology Today blog post, Dr. Robin Stern, author of The Gaslight Effect (2007), offers a list of questions to determine whether someone is dancing what she calls the “Gaslight Tango.” Here are several that are especially relevant to the workplace:

  • “You are constantly second-guessing yourself.”
  • “You ask yourself, ‘Am I too sensitive?’ a dozen times a day.”
  • “You often feel confused and even crazy at work.”
  • “You have the sense that you used to be a very different person – more confident, more fun-loving, more relaxed.”

“Crazy at work.” Gaslighting can be, and often is, crazy making.

Gaslighting and workplace bullying & mobbing

Gaslighting usually involves a power imbalance grounded in formal hierarchy, interpersonal dynamics, or both. This makes the workplace a prime host for such behaviors, with bullying a frequent variation. As I wrote several years ago in one of this blog’s most popular posts:

Specific workplace bullying tactics can run from the obvious and transparent to the remarkably deceitful and calculated. Among the most treacherous of the latter is “gaslighting”….Gaslighting at work can range from orchestrated, manipulative aggressor-to-target behaviors, to HR officers expressing faux incredulity in response to claims of abusive mistreatment.

My hypothesis is that a large percentage of the most virulent, targeted bullying and mobbing campaigns involve serious amounts of gaslighting.

Management gaslighting in union organizing campaigns

Gaslighting is often used by employers to oppose labor unions. They use deceptive messaging to get workers to doubt their common sense:

  • “We’re all in this together, so do you really want a union to interfere with that relationship?” — If everyone is truly in this together, then how has the pay gap between high-level executives and rank-and-file workers become so wide and deep over the past few decades? These vast divides exist in most organizations that oppose unions.
  • “If you vote for a union, then you lose your individual voice” — This dubious claim assumes that the individual worker had a meaningful voice to begin with! (Imagine an entry-level administrative assistant or retail store worker approaching their manager with a request to enter into negotiations about their pay and benefits.) On balance, unionized workers have a lot more legal and contract protections for expressing work-related concerns than do non-union workers.
  • “We can’t control what happens if a union is voted in” — This is a classic gambit meant to plant confusion and fear of the unknown about the consequences of a successful union election.

Gaslighting and managerial pronouncements

We may think of gaslighting as being targeted at individuals, but sometimes it’s a group experience on the receiving end.

When an executive, manager, or senior administrator invokes the term “transparency” (or some variant) and it feels like they’re merely being transparent about being opaque, that’s potential gaslighting. When human resources announces changes in employee relations policies that offer more “flexibility,” “freedom to choose,” or “streamlining” that will advantage all, when in reality it means lower or fewer benefits and/or more hassle, that’s potential gaslighting.

If your response upon hearing such pronouncements is along the lines of “hold it, this makes no sense” or “do they really think I’m that stupid?!,” well, then, look for the gaslight.

Intentional, but not necessarily maliciously so

Yes, gaslighting is often employed to intimidate, confuse, frighten and/or diminish its target. In this way it is a significant, malicious, dignity-denying abuse of power.

However, in a smaller share of situations it may be used to fight back against injustice, mistreatment, or abuse, to basically keep the other side guessing. Why a smaller share? Because gaslighting does not come naturally to most of us. “Thinking like a gaslighter” can mean having to think like a psychopath, sociopath, or severe narcissist. It’s not a pleasant place to be.

What gaslighting is not

Of course, now that gaslighting has become a more popular term, it is inevitable that it will be misused or confused with other behaviors. Over the years, I’ve read and heard about claims of gaslighting that do not appear to be the case. Gaslighting is generally not synonymous with:

  • An honest disagreement, even an intense or heated one;
  • An argument that includes misunderstandings, sometimes on both ends;
  • Individuals being obstinate or stubborn;
  • Erroneous, even confusing, orders and instructions;
  • One side or multiple sides talking past, over, or through each other;
  • “White lies” meant to mask a more painful or difficult truth;
  • Instances of incivility; or,
  • An incoherent explanation.

Of course, gaslighting could become a part of these interactions, but it is not their equivalent.

A gray area is when people are, well, “messing with each other’s heads.” This can occur in dysfunctional relationships of all kinds. I’ll leave it to readers to make a call on this. (As I see it, the devil rests in the details.)

At the worst end of the spectrum

Like any other form of manipulation, instances of gaslighting are not equal in frequency and severity. The worst cases, however, are truly disabling and debilitating, the products of scary minds capable of inflicting serious psychological abuse. I hope that gaslighting will gain greater attention as we continue to address behaviors in our society worth preventing and stopping.

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