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. 

***

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.

Workplace bullying and mobbing: Toxic systems and the eliminationist mindset

(Drawing by Aaron Maeda, copyright 2016)

Virulent instances of workplace mistreatment often involve an eliminationist intention on the part of the chief aggressor(s). Two years ago I wrote that the eliminationist instinct may express itself in several ways, including workplace bullying and mobbing behaviors. It often reflects a desire not only to eliminate an employee from the workplace, but also to undermine the individual’s livelihood and health even after departure from the organization.

This year I’ve also been thinking a lot about the roles of lead aggressors vs. roles played by other organizational actors in work abuse situations, especially from a systems theory perspective that examines how human roles and interactions culminate in systems that produce certain results. In May I wrote:

Thus, a typical campaign of severe bullying or mobbing at work involves multiple players, including but hardly limited to:

  • The main aggressor(s);
  • The supervisor or boss of the main aggressor(s), in order to ratify and sometimes further the abuse;
  • On frequent occasion, peers recruited/pressured/incentivized to join in on the abuse;
  • Human resources personnel to bureaucratically process the abuse through review and discipline of the target;
  • Legal counsel to provide cover for the organization and sometimes direct additional intimidation toward the target.

These players join to create systems of abuse, sometimes tightly coordinated, other times acting in a sort of auto-pilot mode. Not infrequently, players outside of the workplace are enlisted to help out as well, thereby extending the system beyond the office or plant.

Recently I also speculated whether work abusers represented a “few bad apples” or a terribly bad harvest, suggesting that “(b)ad behaviors are typically enabled, endorsed, and/or empowered by bad organizations.”

So here are my questions for today: When does a whole system basically internalize the eliminationist mindset? When does the organizational toxicity metastasize to the point where most, if not all, relevant actors are now emotionally committed to eliminating the target? What factors and influences create this dynamic, which at this juncture is usually a full-on mobbing? As I wrote in April, such abuse can take on a multi-directional, blitzkrieg approach designed “to disorient, confuse, frighten, weaken, and ultimately disable the target.” 

These thoughts hopefully further the conversation about individual vs. organizational accountability for bullying and mobbing behaviors. As I suggested in February, it really should be about both. In the worst situations that I’ve become familiar with, the net must be cast widely in terms of identifying responsible players, typically implicating the organization as a whole.

Workplace abusers: A few “bad apples” or part of a terribly bad harvest?

Image from todayifoundout.com

In recent weeks, I’ve encountered multiple variations on the “just a few bad apples” excuse/explanation/dodge, meant to assure others that corruption, violence, sexual harassment or assault, or bullying of employees or customers are the acts of a mere handful of miscreants within an organization, or perhaps even a sole rotten one. There’s always going to be a bad apple or two. He was just a bad apple. It’s hard to screen out every bad apple. It’s unfair to define us by a few bad apples. And blah blah blah.

True, the bad apples analogy may sometimes fit the situation. Maybe an organization that tries to do everything right in terms of hiring, supervision, and review finds itself dealing with that rare bad employee who has mistreated others, and somehow the situation got out of hand.

I’ll concede that possibility.

But all too often, when I hear or read of an organizational leader or spokesperson invoking bad apple-speak, I feel like I’m being conned. Bad behaviors are typically enabled, endorsed, and/or empowered by bad organizations. Often it’s clear that the situation suggests a pattern and practice of abuse or wrongdoing. Even in situations where the key abusers are few, many other organizational actors looked the other way or tacitly enabled the mistreatment. And sometimes it’s simply a lie, a cover-up for a whole harvest of bad apples.

Where the bad apples analogy actually fits, frequently it is used to reduce the need for organizational and leadership accountability, as if to say that this unusual occurrence somehow makes the underlying misconduct less serious. Instead, a full-throated apology and promise to make things right would be the stand up thing to do.

 

When it comes to workplace abuse, evil still trumps stupid

Guardian columnist Oliver Burkeman offers a provocative, if somewhat tongue-in-cheek thesis about bad leaders: We should fear the stupid ones more than the evil ones. In support of his point, Burkeman cites a humorous 1976 essay by economist Carlo Cipolla:

Cipolla has a technical definition of a stupid person: someone “who causes losses to another person [or group] while himself deriving no gain and even possibly incurring losses” – as opposed to a “bandit”, who pursues selfish gain at cost to others. “Day after day, with unceasing monotony, one is harassed in one’s activities by stupid individuals who appear suddenly and unexpectedly in the most inconvenient places and at the most improbable moments,” he writes.

…What makes stupid people so dangerous is that you can’t refer to their own self-interest to predict or explain their actions. “An intelligent person may understand the logic of a bandit,” Cipolla writes. “The bandit’s actions follow a pattern of rationality: nasty rationality, if you like, but still rationality.” Not so with the stupid.

True, anyone who has worked under not-so-bright leaders knows the havoc that they can wreak. These leaders may also suffer from the Dunning-Kruger Effect, a cognitive bias where incompetent individuals vastly overrate their abilities. A lot of dumb, absurd, crazy-making stuff can happen when such people are in charge, leading to massive frustrations and squanderings of time, effort, and money.

But when I apply the Burkeman/Cipolla thesis to workplace abuse, I find it grinding to a halt. When it comes to workplace bullying and mobbing, it’s the evil leaders we should fear the most — the ones who maliciously abuse others, encourage a culture of such behaviors, and/or look the other way when they occur.

True, work abuse may have no seeming rationality, in that it is bad for everyone (exempting perhaps abusers and their enablers), thus technically qualifying for the label of stupid. But make no mistake about it, genuine bullying and mobbing behaviors are motivated by a desire to instill fear or distress. Oliver Wendell Holmes, Jr., the great American jurist, wrote that “Even a dog distinguishes between being stumbled over and being kicked” (The Common Law, 1881). Most of those who have been savagely mistreated at work know the difference as well.

Of course, on occasion we encounter those folks who are both evil and stupid, while possessing the power to impose themselves on others. If they are aware of their lack of competence (the opposite of Dunning-Kruger Effect), it may fuel insecurities that can drive bullying. When combined with their capacity for malevolence, abusive behaviors may well follow. And if they are in leadership positions, then really bad things can happen to subordinates who challenge them.

Can institutions be caring servants for a greater good?

In the opening to his monograph The Institution as Servant (1972; rev. ed. 2009), the late Robert K. Greenleaf stated:

THIS IS MY THESIS: caring for persons, the more able and the less able serving each other, is the rock upon which a good society is built. Whereas, until recently, caring was largely person to person, now most of it is mediated through institutions — often large, complex, powerful, impersonal; not always competent; sometimes corrupt. If a better society is to be built, one that is more just and more loving, one that provides greater creative opportunity for its people, then the most open course is to raise both the capacity to serve and the very performance as servant of existing major institutions by new regenerative forces operating within them.

Greenleaf devoted much of his life to advancing the philosophy and practice of servant leadership. I was introduced to this concept by educator Steven James Lawrence, who tied it into the quest for greater dignity in our workplaces. This led me to the Robert K. Greenleaf Center for Servant Leadership in Atlanta, which describes servant leadership this way:

While servant leadership is a timeless concept, the phrase “servant leadership” was coined by Robert K. Greenleaf in The Servant as Leader, an essay that he first published in 1970. In that essay, Greenleaf said:

“The servant-leader is servant first… It begins with the natural feeling that one wants to serve, to serve first. Then conscious choice brings one to aspire to lead. That person is sharply different from one who is leader first, perhaps because of the need to assuage an unusual power drive or to acquire material possessions…The leader-first and the servant-first are two extreme types. Between them there are shadings and blends that are part of the infinite variety of human nature.

“The difference manifests itself in the care taken by the servant-first to make sure that other people’s highest priority needs are being served. The best test, and difficult to administer, is: Do those served grow as persons? Do they, while being served, become healthier, wiser, freer, more autonomous, more likely themselves to become servants? And, what is the effect on the least privileged in society? Will they benefit or at least not be further deprived?“

A servant-leader focuses primarily on the growth and well-being of people and the communities to which they belong. While traditional leadership generally involves the accumulation and exercise of power by one at the “top of the pyramid,” servant leadership is different. The servant-leader shares power, puts the needs of others first and helps people develop and perform as highly as possible.

Linking institutions and individuals in a servant leadership mode

You can see the challenge, drawing heavily upon Greenleaf’s thinking:

  1. Organizations have become the conduits through which society does much of its “caring work.”
  2. Organizations are only as good as their citizens, especially their leaders.
  3. Thus, to foster better, more caring institutions, we have to create and empower more caring leaders eager and willing to serve in a servant leadership capacity.

Uh oh, this isn’t going to be easy, right? It runs smack dab into commonly-held notions of self-interested ambition and advancement that are drilled into the heads of high achievers early on. Think family expectations for success. Think the cultures of business schools, law schools, and elite colleges and universities. Many of us (myself included) are where we are because we bought into that achievement ethic, at least in part, and perhaps at times at the cost of conducting ourselves in a servant leadership mode.

Furthermore, changing existing institutions is hard work. Organizational cultures set in good and bad ways. Greenleaf wrote The Institution as Servant especially for trustees in businesses, universities, and religious institutions. However, stakeholders at all levels must be invited to play a role in positive transformation. Also, it may be easier to imbue new organizations with a spirit of servant leadership rather than trying to move existing ones that seem stuck in place.

Finally, as some protested when I first wrote about servant leadership over a year ago, some leaders claim to be operating in servant leadership mode when, in reality, they’re doing quite the opposite. Thus, servant leadership has been hijacked in some instances by individuals who tout themselves as being something they’re not. (I’ve seen folks like this in academic workplaces. They’re also fond of using terms such as “transparency” and “shared governance,” and the more they invoke them, the less they practice them.)

Still, this is all worth pursuing. To a large degree, our society is the product of the institutions that shape it. Better organizations and better leaders can only help us.

How do social and economic class differences impact workplace bullying?

Do social and economic class differences impact workplace bullying and mobbing behaviors? If so, how?

America continues to think itself as a classless society, despite deep and worsening wealth divisions. Now, however, it appears that a combination of the ongoing effects of the Great Recession and the tumult associated with the election of Donald Trump has prompted some closer looks at class distinctions. For example, The Guardian newspaper has launched an ongoing investigative study of class and inequality in the U.S.:

We’re calling it On the Ground: reporting from all corners of America. The series is funded in part by a grant from the Rockefeller Foundation to support the Guardian’s reporting on wealth inequality in America. The Rockefeller grant will fund a broader Guardian project called Inequality and Opportunity in America, focused on economic disparities due to work, class and inequality.

Also, Annie Lowrey, writing for The Atlantic, spotlights a new book by Richard V. Reeves, Dream Hoarders (2017), that points a finger at America’s upper middle class as a major culprit in reinforcing inequality. While recognizing the extreme wealth concentrations enjoyed by the top one percent, Reeves argues that the top twenty percent have also enjoyed considerable success in recent decades, leaving the others in their wake. He further posits that these advantages are being passed on to their children in ways that will only harden social and economic class inequalities.

I’d like to take a closer look at these commentaries in a future post, but for now let’s return to bullying and class distinctions. I did a quick search for studies examining potential relationships between workplace bullying and social/economic class and didn’t come up with much. But the more I ponder the question, the more I’m convinced that class can play out significantly in this realm. It may manifest itself in a well compensated manager or highly degreed professional who looks down at less educated, lower paid co-workers and treats them accordingly. It may involve a group of co-workers who see a peer as not being from their side of the tracks (whichever side that may be) and bully, harass, and ostracize that individual because of it.

In any event, this topic is ripe for more research and understanding. Workplace bullying, mobbing, and abuse may occur due to many reasons. Class distinctions definitely belong on the list.

Lessons from “Spotlight” for combating interpersonal abuse

Dear readers, I’ve been on the road a lot lately and not able to write as often as usual, but this evening I finished re-watching “Spotlight,” the superb 2015 movie about the Boston Globe’s investigation of the widespread sexual abuse of children committed by priests in the Catholic Church. The title refers to the Globe’s Spotlight investigative team, which spent months pursuing leads and interviewing individuals before going public with its findings in January 2002. Although the Globe was not the only journalistic player in this saga, it took the dedicated resources of the Spotlight team to document the abuse and a cover-up going all the way up to the Archdiocese and Cardinal Bernard Law.

The individual performances in “Spotlight” are outstanding. Michael Keaton (editor “Robby” Robinson), Mark Ruffalo (reporter Mike Rezendes), Rachel McAdams (reporter Sacha Pfeiffer), Liev Schreiber (editor-in-chief Marty Baron), and Stanley Tucci (lawyer Mitch Garabedian) are among those who deliver serious, believable, and understated performances. The movie doesn’t pull punches about the gruesomeness of what occurred here. Nevertheless, it avoids lapsing into overly prurient detail or Catholic-bashing. It lets the story speak for itself, ranging from the impact of sexual abuse on the victims, to the enabling culture of a city, to the powerful institutional role played by the Church in the long-term cover up.

The movie also provides some important food for thought about how to combat systematic abuse, including bullying and abuse in the workplace and other settings. (If you haven’t seen the movie, there are some spoilers ahead.)

First, as I wrote last week, abuse tends to be fueled, enabled, empowered, and protected by corrupt systems. There’s a brilliant scene in the movie where Mitch Garabedian, a lawyer for the child victims of priest abuse, tells Globe reporter Mike Rezendes that “…if it takes village to raise a child, then it takes a village to abuse one.”

Second, muckraking investigative journalism and dedicated, smart legal advocacy still make for a powerful combination. The Globe‘s reporters benefited greatly from the legal advocacy and investigations of lawyers who had taken cases on behalf of the victims.

Third, it may take multiple documented, credible victim stories in order to take on powerful, abuse-sponsoring institutions. The Spotlight team’s investigation didn’t really take off until it became clear that the victim count ran into the many dozens.

Fourth, it’s important to follow the abuse and its cover-up to the highest possible organizational levels in order to have the strongest potential impact. Globe editor Marty Baron made clear to the Spotlight reporters that accountability should be traced, if possible, up to the Archdiocese and Cardinal Law.

“Spotlight” can currently be streamed via Netflix. For the collected Globe Spotlight Team coverage of the priest scandal, go here.

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