The Amy Wax situation: On academic freedom, diversity & inclusion, workplace mobbing, and cancel culture

Screenshot from Inside Higher Education

Applying just about any conventional measure, law professor Amy Wax has built a spectacularly successful career. She holds a chaired professorship at an Ivy League law school (University of Pennsylvania). She has assembled a ferocious c.v. (link here), loaded with sterling academic and professional achievements, publications, and awards. Her degrees include a J.D. from Columbia and an M.D. from Harvard.

And yet she is under heavy fire for an ongoing, alleged series of polarizing, critical statements and negative characterizations about people of color, women, and gays. For that she faces potential discipline and loss of tenure protections. The Dean of her law school has asked the university’s faculty senate to impose sanctions on her, a possible prelude towards eventual termination proceedings.

Scott Jaschik, writing for Inside Higher Education (link here), provides a lot of details about this situation, which has received national attention. Here’s his lede:

Some students and faculty at the University of Pennsylvania have been clamoring for years for the ouster of Amy Wax, the polarizing law professor who courted scandal with incendiary and racist remarks and writings and seemed to relish the resulting controversies. Despite the repeated calls for her removal from her tenured position, and the criticisms of her actions—including by university leaders—that followed each controversy, Wax remained in the position and seemed firmly protected by free speech and academic freedom rights.

That pattern may be about to change: the dean of the Penn law school has started a process that could lead to Wax’s termination.

To be clear, we’re not talking about an isolated instance or two of questionable speech. From Penn Law dean Theodore Ruger’s memorandum to the Chair of the Faculty Senate (link here), here are some of Prof. Wax’s alleged statements, made to individual students, her classes, and public audiences:

• “Stating in class that Mexican men are more likely to assault women and remarking such a stereotype was accurate in the same way as ‘Germans are punctual.'”
• “Commenting in class that gay couples are not fit to raise children and making other references to LGBTQ people that a student reported evinced a ‘pattern of homophobia.'”
• “Commenting after a series of students with foreign-sounding names introduced themselves that one student was ‘finally, an American’ adding, ‘it’s a good thing, trust me.'”
• Telling a Black student…”who asked whether Wax agreed with [a panelist’s] statements that Black people are inherently inferior to white people, that ‘you can have two plants that grow under the same conditions, and one will just grow higher than the other.'”
• Telling a Black student “that Black students don’t perform as well as white students because they are less well prepared, and that they are less well prepared because of affirmative action.”
• “Stating, based on misleading citation of other sources, that ‘women, on average, are less knowledgeable than men,’ women are ‘less intellectual than men’ and there is ‘some evidence’ for the proposition that ‘men and women differ in cognitive ability.'”
• “Stating that ‘our country will be better off with more whites and fewer nonwhites.'”
• “Stating that Asians have an ‘indifference to liberty,’ lack ‘thoughtful and audacious individualism’ and that ‘the United States is better off with fewer Asians and less Asian immigration.’”
• “Stating that ‘there were some very smart Jews’ among her past students but that Ashkenazi Jews are ‘diluting [their] brand like crazy because [they are] intermarrying.'”
• “Stating that low-income students may cause ‘reverse contagion,’ infecting more ‘capable and sophisticated’ students with their ‘delinquency and rule-breaking.'”
• “Stating that ‘if you go into medical schools, you’ll see that Indians, South Asians are now rising stars. . . . [T]hese diversity, equity and inclusion initiatives are poisoning the scientific establishment and the medical establishment now.'”

In her recently posted GoFundMe appeal to create the “Amy Wax Legal Defense Fund” (link here), Prof. Wax states that Dean Ruger’s charges of inappropriate conduct are an attack on her conservative principles and are “littered with indignant invective and unsubstantiated and distorted claims.” She adds:

Penn Law Dean Ruger’s latest steps are part of a longstanding campaign at Penn Law School against me based on my stated positions, opinions, and speech, and despite my stellar performance as an award-winning teacher and academic during my decades-long career as a law professor. Penn’s actions represent an unprecedented and deeply destructive threat to the practice and traditions of free expression on campus and the tenure protections afforded to professors who express unpopular views. They are further evidence of the “woke” takeover of our university system, which seeks to stifle and punish dissent and purge our campuses of any deviation from a narrow set of progressive dogmas.

Academic freedom and tenure

While academic tenure may not be the lifetime job guarantee that some claim it is, it’s true that tenured professors at stable institutions who perform their work satisfactorily can expect continued employment. (For more about this topic, see my blog article, “What is academic tenure?,” link here.) And as a tenured professor at a prestigious university, Prof. Wax enjoys some of the strongest job protections available to any American employee.

One of the main purposes of tenure is to safeguard academic freedom in teaching, scholarship, and service activities. This includes freedom of expression, written or spoken. I regard academic freedom and tenure as carrying both rights and responsibilities. They include earned protections and accompanying obligations to perform one’s job with integrity. Tenure revocation is possible in cases of serious misconduct.

For controversial speech in such a context, I suggest that we establish a spectrum between being a thought-provoking scholar and being a simple provocateur.

The thought-provoking scholar pushes the boundaries of our assumptions and perceptions, using facts, analysis, interpretation, and sometimes creative expression. At times, this may include voicing or supporting unpopular viewpoints. The simple provocateur is more akin to a keyboard warrior, playing to the crowd in the comments section. This is the stuff of the internet troll and has very little to do with reasoned thought.

Where Amy Wax places on that spectrum may help us understand how her situation should be resolved. If her statements are considered so outlandish, irresponsible, and hurtful as to constitute misconduct, then sanctions may be in offing.

One of the most challenging considerations here is that we don’t have a bevy of comparable situations to give us guidance on how this should be handled. Assuming that Prof. Wax said or wrote most of the statements attributed to her, then this is a far cry from more typical scenarios that involve isolated instances or a small cluster of utterances deemed problematic.

It’s fair to point out that if Wax had been employed in a standard-brand, private-sector job setting (like a law firm or medical center), then it’s likely that she would’ve been terminated for cause already, perhaps following disciplinary warnings or a suspension. But academic freedom and tenure provide both substantive and procedural protections that most jobs do not offer.

Diversity and inclusion

You can easily see how the Wax situation is tailor-made for America’s tortured and fraught political and civic dialogue about diversity and freedom of expression. Her alleged statements have caused such an uproar because many have found them to be outrageous, hurtful, and wrongheaded. They’ve come at a time when “DEI” (diversity, equity, inclusion) is a deep focus of the day, in academe and corporate America alike.

Wax’s defenders range from those who agree with the substance of her alleged statements to those who place a very high value on academic freedom. 

Workplace mobbing

Folks have every right to criticize or defend Wax. She should be subjected to appropriate discipline if she’s crossed a clear line. From my concededly distanced perch, I believe that she is at that line or has even crossed it. While some of her alleged statements may fall under the cloak of academic freedom, many others appear to be grounded in animus towards difference.

Whether one agrees with Wax or not, there’s always a risk that critical voices can become an unruly mob. I find Wax’s worldview deeply objectionable, but I’m not happy about workplace mobbing scenes either. Prof. Kenneth Westhues’ pathbreaking work on mobbing in academe has repeatedly illustrated how quickly and dramatically such behaviors can escalate.

I imagine that Prof. Wax is feeling quite under siege right now. I don’t envy her. If she does face any disciplinary proceedings, then I hope — for everyone’s sake — that they will be conducted with dignity, fairness, and honesty.

Cancel culture

Especially because there is no legal definition of cancel culture, it’s important that we have some understanding of what it means in the employment context. I suggest that we define cancel culture at work as a response claimed to be disproportionately harsh — typically, either severe discipline or termination — to statements or actions deemed objectionable, hurtful and/or controversial.

At this juncture, it’s hard for anyone to legitimately claim that Amy Wax has been “cancelled.” However, the University’s moves toward possible disciplinary action and/or termination will cause the term to be used. And especially if her tenure is revoked and she is dismissed, then notwithstanding any due process she had been accorded, the cries of cancel culture from certain circles will be loud and sustained.

If Wax does leave Penn under whatever circumstances, then she will very likely land on her feet. She will be accorded martyr status and will no doubt be hired by an institution more compatible with her social and ideological views.

Summing up

While admitting that I’ve waded into this conversation with some trepidation, I feel obliged to share my own sense of this situation. I consider many of Amy Wax’s alleged statements to be hurtful and divisive. They sound like those of a provocateur fueling an ugly, exclusionary worldview, rather than those of a thought-provoking professor who occupies a position of enormous privilege and responsibility.

Yup, issues surrounding diversity and difference are challenging and can yield honest differences of opinion. There is a place in that discussion for strong language. But I don’t think that the heart of Wax’s rhetoric is contributing to our understanding of these issues. Sadly, one thing I’m certain of is that the eventual outcome of this situation — whatever it happens to be — will drive a deeper wedge into our political and social divide. 

Lessons learned early: School responses to bullying and abuse accusations

For better and for worse, we often learn about organizational responses to bullying and abuse accusations early in life, by witnessing how school systems deal with them. As Kerry Justich reports for Yahoo (link here), a high school senior in Vancouver, Washington, is learning what that response may entail:

A high school senior in Vancouver, Wash. will no longer be walking in his graduation on Saturday, after accusing the administration of ignoring bullying and sexual assault allegedly taking place at school.

Charles Chandler was giving a speech in front of students and families of Heritage High School during a ceremony on Wednesday when he went off script and made some controversial comments against the administration.

“And to you, underclassmen,” Chandler is heard saying toward the end of his speech, “who have to endure all the things the school throw at you for two to three more years. A school where the administration closes their eyes to everything that happens in the school. Their school. The sexual assault, the bullying, the depression, the outcasts. And they do nothing to fix it.”

Through surprised reactions heard throughout the crowd, Chandler continued to say that if the school does take notice of these incidents, “they take the side of the accused and not the victim,” before the audience ultimately erupted in cheers.

Although Chandler’s peers appeared to agree with him, principal Derek Garrison did not, claiming his comments were not truthful:

“His comments were full of inaccuracies, inflammatory statements and hurtful accusations,” the principal’s letter, obtained by Yahoo Lifestyle, reads. “Administrators called the student in to explain why spreading rumors and inaccurate information was extremely problematic.”

The story has attracted a lot of local attention, and several dozen Heritage students protested the school’s treatment of Chandler by staging a walkout.

One of many

Of course, this is only one of many accounts of how school systems have pushed back against accusations of bullying, sexual assault, and other forms of abuse and misconduct. Typically this takes place in one or more of these forms:

• Outright denial that any wrongful behavior occurred;
• Dismissal of the seriousness of the allegations, suggesting an overreaction;
• Active coverups of abuse; and/or,
• Retaliation against the accusers.

Hmm, this sounds like what happens in way too many bullying, harassment, and whistleblower situations at work, yes?

Indeed, school responses to student allegations of wrongdoing sometimes resemble responses of bad employers to employee allegations of mistreatment or misconduct. When both student complainants and bystanders witness how such allegations are swept under the rug or otherwise mishandled by their schools, they learn an unfortunate lesson about getting along, going along, and keeping their mouths shut in the face of wrongful behavior.

Back to Heritage High

We don’t know the full story behind Charles Chandler’s accusations about student life at Heritage High School. According to the Yahoo news article, the “principal’s letter offered Chandler the opportunity to participate in a ‘restorative solution,’ or face disciplinary action that included not walking at graduation,” and that Chandler opted for the latter. Reading between the lines, it appears that he didn’t trust the process offered to him, and that many of his fellow students — as evidenced by their support for him — share his concerns. 

In fact, Katie Gillespie reports for The Columbian that other students have reported mistreatment at the school (link here):

Some students at the school praised Chandler for standing up for what they see as continued tolerance of bullying and harassment at the Evergreen Public Schools campus.

Frost Honrath, 17, said she twice reported being physically assaulted by another student, but felt the district’s response was insufficient.

“I really want to see action in our school,” Honrath said. “They’re pushing it aside.”

Ethan Wheeler, 17, said a student once wrapped a noose, a prop from a play, around his neck and told him to kill himself. When he tried to get help, “it seemed like nothing was really done.”

This may turn out to be one of those more unusual situations of a story going viral, and thus prompting a public defense of the individual issuing the accusations. It could lead to a more comprehensive examination of student life at this high school. Maybe the students will learn a different lesson about the value of raising their voices.

Texting suicide case: When words have terrible consequences

In 2014, Michelle Carter, then 17 years old, used an ongoing series of text messages to repeatedly encourage her boyfriend, Conrad Roy, age 18, to die by suicide. Prodded by Carter, Roy killed himself by using a truck filled with carbon monoxide gas.

Carter was convicted of involuntary manslaughter and sentenced to 15 months in prison. Earlier this month, the Massachusetts Supreme Judicial Court upheld her conviction, holding that Carter’s intentions and acts overcame concerns about freedom of speech. As reported by WBUR News:

A young woman who as a teenager encouraged her boyfriend through dozens of text messages to kill himself is responsible for his suicide, Massachusetts’ highest court ruled Wednesday in upholding her involuntary manslaughter conviction.

The Supreme Judicial Court said in a unanimous decision in the novel case that Michelle Carter’s actions caused Conrad Roy III to die in a truck filled with toxic gas in a deserted parking lot nearly five years ago.

…”After she convinced him to get back into the carbon monoxide filled truck, she did absolutely nothing to help him: she did not call for help or tell him to get out of the truck as she listened to him choke and die,” Justice Scott Kafker wrote.

The Court’s full opinion may be accessed here.

Both of these young people had struggled with mental illness during the time preceding Roy’s death:

Carter and Roy both lived in Massachusetts but met in Florida in 2012 while both were on vacation with their families. Their relationship consisted mainly of texting and other electronic communications. Both teens struggled with depression. Carter had also been treated for anorexia, and Roy had made earlier suicide attempts.

Carter was 17 when Roy, 18, took his own life in Fairhaven, a town on the state’s south coast, in July 2014. Her case raised thorny legal questions about free speech and provided a disturbing look at teenage depression and suicide.

“I thought you wanted to do this. The time is right and you’re ready – just do it babe,” Carter wrote in one message.

“You’re finally going to be happy in heaven. No more pain. It’s okay to be scared and it’s normal. I mean, you’re about to die,” she wrote in another.

Boston Globe columnist Kevin Cullen, who has followed this case closely, expresses concerns that, in the court’s eyes, Carter’s actions didn’t become illegal until she directed him to get back into his poisonous gas-filled truck and then failed to call for assistance:

The Supreme Judicial Court unanimously affirmed Juvenile Court Judge Lawrence Moniz’s ruling that Carter was guilty because she took “wanton and reckless” actions by ordering Roy to climb back into his truck and by not summoning help.

The SJC ruling suggests that, absent behavior as egregious as Carter’s, it will be a stretch for prosecutors to charge someone who encourages or coerces a vulnerable person to kill themselves.

Carter repeatedly encouraged Roy to kill himself, recommended ways for him to do it, and chastised him when he lost the nerve, besieging him with text messages and calls so that her cellphone became a virtual weapon. But under current Massachusetts law, none of those abhorrent actions amounted to a crime.

Cullen would like to see the law cover the broader spectrum of Carter’s actions.

When it comes to this particular set of facts, I am comfortable with the legal result: A manslaughter conviction with a very light sentence. The crime for which Carter was found guilty sends the right message, while the sentence imposed takes into account her age, immaturity, and mental health status at the time. As to whether the criminal law should reach deeper into the ongoing course of Carter’s behavior that led to Roy’s death, I think it is worthy of discussion.

Furthermore, Cullen may be hinting at what some of us are thinking: There is something profoundly disturbing about this young woman. Yes, she may have psychiatric problems that call for treatment and understanding. But her own words also reveal how a sharp intellect and a seeming absence of conscience combined to prod and manipulate Conrad Roy into taking his own life. Especially given her age at the time of the act, I will defer to my colleagues with clinical and counseling training to opine on whether this is suggestive of a more baked-in personality disorder that could lead to future like behaviors. That said, in my psychological layperson’s view, she gives me the creeps.

Applications to workplaces

I pay attention to stories like this one in part because I ask how they may be pertinent to workplaces. Alas, there is no shortage of relevancy. The worst instances of workplace bullying and mobbing, and most toxic workplaces generally, are often fueled by intellectually sharp people who lack a conscience. Whether it’s targeted abuse towards an individual, or, say, a wave of ground-level layoffs without an ounce of sacrifice from highly-paid executives, the actions are frequently executed and/or enabled by those who are missing qualities of empathy and kindness. In cases of work abuse, words are typically deployed as weapons.

Here in the U.S., we pride ourselves on boasting that we enjoy the right of free speech, as enshrined in our Constitution. How true that happens to be in reality may be subject to debate, but it is part of our cultural norm nonetheless. In any event, we too often see that right as absolute, rather than acknowledging how freedom of speech should come with a responsibility — moral if not legal — to use it wisely. In some cases, an expression of speech becomes harmful conduct, such as when it is used intentionally to harass, bully, and hurt others. When words are used specifically to wound, and they achieve that desired objective, then we should at least be discussing the possibility of legal interventions.

We’ve already crossed that juncture with employment discrimination laws, under which harassment on the basis of race, sex, religion, disability, and other protected classes is an unlawful employment practice. We’re also working on creating legal protections against severe workplace bullying, mobbing, and abuse via the proposed Healthy Workplace Bill, which is currently pending before the Massachusetts legislature with over 90 co-sponsors. Adapting from sexual harassment law, the bill uses the term “abusive work environment” to signal needed legal protections.

Freedom of speech is necessary for open, democratic societies. But when words are used to abuse and destroy others, well, that’s not something we should be waving the flag about. A decent nation embraces human dignity as part of free expression.

 

Incivility and “deplorables”

In a recent piece for The Atlantic, law school dean Blake Morant (George Washington U.) recalled a speaking appearance in which he was verbally challenged by a man who called himself a “deplorable”:

One month before the 2016 presidential election, I spoke on a panel in Charlottesville, Virginia, on the topic of campus speech. The audience was generally enthusiastic and engaged. A tense moment arrived, however, when one individual, who identified himself as a “deplorable,” took issue with the composition of the panel (two white women and myself, an African American male). He explained that the panel in his view was slanted, did not represent a more conservative position, and that I, as an African American, represented so much of why he as a working-class white male struggles in this economy.

Morant wrote that he tried to engage the man in a conversation, but that his efforts failed. He added that he has been haunted by the exchange, asking himself if he could’ve responded to the man in a more constructive way. He used the story of the incident to call for more civility in our civic discourse.

The backstory

But there’s a catch here that Morant didn’t mention. The term “deplorables,” in this context, traces back to a Hillary Clinton speech at a fundraising event during the 2016 presidential campaign. Here’s what happened, per this report for Time magazine that includes the full transcript of her remarks:

Speaking at a fundraiser in New York City on Friday, Hillary Clinton said half of Donald Trump’s supporters belong in a “basket of deplorables” characterized by “racist, sexist, homophobic, xenophobic, Islamaphobic” views.

“You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?” Clinton said. “The racist, sexist, homophobic, xenophobic, Islamaphobic—you name it. And unfortunately there are people like that. And he has lifted them up.”

She said the other half of Trump’s supporters “feel that the government has let them down” and are “desperate for change.”

I remember feeling my heart sink when I read the news reports. Of course, I knew it would become a campaign issue, and that was enough to cause despair. Boiled to its essence, Clinton had just called millions of likely Trump voters “deplorables.”

And that, indeed, is how it was reported in the popular media. Clinton’s reference to the other half of his supporters who felt let down by the system was largely ignored.

In response, lots of Trump supporters, playing on Clinton’s remark, began to identify themselves as “deplorables.” They co-opted and claimed the insult.

And so that is why Dean Morant’s unhappy panel discussion attendee announced himself as a “deplorable.”

Civility, opinion, and judging

I voted for Hillary Clinton without reservation, largely because I found her opponent’s worldview and behavior to be alarming and disturbing.

But I voted for Clinton also without enthusiasm, in part because of her “deplorables” comment. It reflected an elitist attitude that is entrenched in powerful circles, and that includes a certain cohort within the left-of-center. 

It may be a fine line, but there’s a critical difference between calling someone’s opinions or conduct deplorable and calling that person a deplorable.

At times, I’m guilty of taking the latter approach. Instead of characterizing viewpoints I find deeply objectionable, I label the person.

Nevertheless, the world would be better off if we kept those judgments to a minimum and gave people the benefit of the doubt, at least when it comes to avoiding blanket condemnations. (There are exceptions, of course, and I admit that I apply one to America’s current president.)

Incivility, like bullying and abuse, often runs in cycles. Once it starts, it can be hard to stop. We’re seeing an ugly, destructive ramping up of that dynamic in our civic life today. As these divisions deepen, they will become harder to dissolve.

In praise of thoughtful dissenters

(image courtesy of quote fancy.com)

In a 1954 broadcast critical of red-baiting U.S. Senator Joseph McCarthy, celebrated journalist Edward R. Murrow urged upon his listeners that “We must not confuse dissent with disloyalty.” Given today’s often poisonous political and social atmosphere, buttressed by bad leaders fueling these dynamics, Murrow’s words continue to ring very true.

And if you’re looking for some contemporary commentary about the importance of dissent in our institutions, workplaces, and civic life, then I’m pleased to recommend a new title by social psychologist Charlan Nemeth (UC-Berkeley), In Defense of Troublemakers: The Power of Dissent in Life and Business (2018). In her book, Dr. Nemeth poses a challenge to leaders and institutions that drive us toward consensus, without leaving room for thoughtful dissent and questioning. Here’s a description, drawn from her website:

Good decision making requires divergent thinking, an unbiased search for information on all sides of the issue, a consideration of multiple alternatives, the weighing of the cons as well as the pros of any given position etc. Regardless of good intentions or even education and training, we don’t do this. We are subject to biases and most social processes conspire to narrow the range of considerations. Consensus and the seeking of it are culprits, not because we follow the consensus right or wrong, but because we think about the issue from that perspective.

By contrast, dissent opens the mind and actually stimulates divergent thinking. It not only challenges and breaks the hold of the majority, it stimulates the information search and consideration of alternatives; it widens the strategies used in problem solving and increases the originality of thought. This is true even when the dissenter is wrong. It is true even when we vigorously dislike the dissenter and her ideas.

The take-home of this book is two-fold. There are perils in consensus and there is value in dissent.

Okay, I hear you: Isn’t reaching consensus a good thing? Don’t we all want to “get to ‘yes'”?, to paraphrase the title of a popular conflict resolution book. Obviously decisions have to be made, for in their absence, things can grind to a halt. Nemeth is not advocating for such outcomes or calling for people to be knee-jerk naysayers. Instead, she’s saying that when decisions result from weighing differences of opinion, the outcomes are often better.

There are lessons in this book for everyone. For example, when I’m in leadership roles or in the classroom, I can be welcoming of differing points of view. However, when I feel very strongly that I’m right, I can get impatient, especially when I perceive that other comments are not well reasoned. Nemeth understands that dissenting opinions — even ultimately erroneous ones — can slow down the process, but she urges their importance nevertheless.

Believe me, I’ve been in academic workplaces long enough to see the damage wrought by marginalizing and even squelching dissenting voices. Organizations that do not encourage genuine input often pay for their insularity. Sadly, their leaders rarely comprehend or admit those costs, instead preferring to bumble along with a top-down approach. Inclusive leadership, bolstered by the confidence to encourage thoughtful dissent, is the better way to go.

In the news

It has been a year of prominent news stories related to the workplace, especially the avalanche of accounts concerning sexual harassment. Here are many of the 2017 news stories in which I’ve been quoted or where my work has been discussed:

• Beth Teitell, Working Bullying Remains in the Shadows, Boston Globe (December 2017);
• Deborah Becker & Martha Bebinger, The Legal Differences Between Sexual Harassment and Workplace Bullying, WBUR-FM “Bostonomix” (December 2017);
• Rebecca Koenig, Battling Bullying in the Workplace, U.S. News & World Report (December 2017); 
• Jeff Horwitz & Jake Pearson, Accusations of misconduct followed top gossip editor, Associated Press wire story (December 2017);
• David Lieberman, To end sexual harassment on the job, end workplace bullying, Los Angeles Times (November 2017);
• Travis Waldron, Weinstein Board Says It Didn’t Know Of Sexual Harassment Allegations. Experts Don’t Buy It, Huffington Post (October 2017);
• Kari Paul & Maria Lamagna, The damaging, incalculable price of sexual harassment, MarketWatch (October 2017);
• Madison Alder, Using Harvey for Political Tweets Could Get You Fired, Bloomberg BNA (September 2017);
• Jon Steingart, Can You Fire Someone for Attending a Rally of Racists?, Bloomberg BNA (August 2017);
• Cale Guthrie Weissman, James Damore’s Legal Case Against Google Isn’t So Clear, Fast Company (August 2017);
• Bianca Mestiza & Sophie Johnson, Access to internships perpetuates inequality, The Ithacan (April 2017) (student newspaper at Ithaca College).

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.

***

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. 

***

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

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.

***

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

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:

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

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.

***

Free blog subscription

For a free subscription to Minding the Workplace, go to “Follow this blog” at the top right of the home page, and enter your e-mail address.