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If “Cancel Culture” Is About Getting Fired, Let’s Cancel At-Will Employment

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You know what should be canceled? The legal right of most bosses to fire you for a “good cause, bad cause, or no cause.”

That status quo is so widely accepted that some progressives don’t think twice about appealing to the authoritarian power of bosses in the pursuit of social justice: Many high profile social media campaigns have been employed to get people who are caught on video committing racist acts in their everyday lives fired from their jobs. But the desire to hold racists and sexists accountable—or the related struggles against sexism, homophobia and fascism—need not be in conflict with the principles of workplace rights.

So-called “cancel culture” is not well-defined, but its critics frequently use the moniker to refer to an activist program of making individuals who harm their neighbors or coworkers with acts of racism, sexism (and worse) accountable through exposure and de-platforming—including attempts to get them fired. Liberal critics have been more likely to raise free speech concerns than any about workers’ rights, while leftists are likelier to argue that free speech doesn’t mean freedom from the consequences of speech.

Depending on what websites you read, “cancel culture” could be portrayed as the biggest threat to society outside of a pandemic with no end in sight, a cratering economy with tens of millions of people out of work and facing eviction, and unidentified men wearing camouflage and carrying machine guns removing protestors from the streets of Portland. The terms of the debate are so problematic that      Trump used the occasion of his July 4 speech to complain of leftists that, “one of their political weapons is ‘cancel culture’—driving people from their jobs, shaming dissenters, and demanding total submission from anyone who disagrees.” Then, because the concept of irony has apparently died of complications from Covid-19, he continued, “This is the very definition of totalitarianism.”

Three years ago, we published an op-ed in the New York Times explaining how U.S. workers lack a basic right to their jobs that many workers in other countries enjoy as a legal standard. As a solution, we proposed a just cause “right to your job” law as a badly needed labor law reform. Since then, we’ve been encouraged to see the issue turn up on many progressives’ agenda.

In the debate between a right to your job and the need to de-platform bigots, some have raised concerns that without the boss’s right to fire an employee for any reason, racists and sexists would get more of a free pass at work. But this argument misses what “just cause” means. It doesn’t mean that employees cannot be fired, it means they can’t be fired for a reason that’s not related to work. Racism, sexism, harassment and other forms of conduct in and out of the workplace that make other employees feel unsafe and violate policies around respect and equity are grounds for discipline and termination—but are also subject to due process. When you look at how “just cause” plays out in areas where it exists—in the public sector, under many union contracts, or in other countries—it’s clear that racists, sexists and harassers are, in fact, disciplined.

Beyond the pale and unacceptable

American workers stand apart from those in other countries, as they’re governed by a body of judge-made law called the “at-will” employment doctrine. The doctrine is built around a sort of false mutuality, where the employee has the “liberty” to quit her job for any reason, and the employer has the right to fire her for any reason. The alternative, commonly negotiated in union contracts, is “just cause”: the principle that an employee can be fired only for a legitimate, serious, work-performance reason. In a union contract—where “just cause” is commonly found—it is usually combined with a progressive discipline system and a grievance procedure to challenge write-ups, suspensions and terminations that a worker feels was unfair.

Progressive discipline typically starts with verbal warning of an infraction or unsatisfactory performance. If, after that warning, a boss thinks that the situation has not improved, it may be followed up with a formal warning in writing, then a suspension without pay and, finally, termination. The progressive steps of discipline reflect an increasing seriousness of infraction, or inability to improve following warnings and remedial supports. Lower levels of discipline might be accompanied by new training or counseling to help the employee improve. But—and this is a key point—while some matters might go through the entire progression of discipline, other more serious infractions might go straight to a higher level of discipline.

A vocal or demonstrative racist creates a hostile work environment for her coworkers, and can be punished—or even fired—under a system of just cause and due process. Let’s look at a few real-world scenarios. Casually browsing through arbitrators’ decisions in New York, we found the case of a professionally-classified employee at a social service agency serving developmentally disabled children and families, who made racist remarks about a supervisor to a fellow worker that other co-workers overheard. Horrified, the co-workers who were subject to an unwelcome racist rant reported it to management, complaining that they were not comfortable working with such an unabashedly racist co-worker. The racist employee was fired. She brought the case to arbitration, arguing that she was not given progressive discipline and was fired without just cause.

The case went all the way up to arbitration and a neutral third-party upheld the termination. The damning judgment: “Under these circumstances, I find that the Employer acted reasonably and had just cause to terminate Grievant’s employment. In maintaining a respectful, productive and safe working environment for a diverse workforce as well as a proper atmosphere for the Employer’s clientele, the use of certain negative language is beyond the pale and is unacceptable, making progressive discipline unwarranted.”

Amy Cooper, the entitled white lady who called the cops on “an African-American” birder in the Ramble of New York’s Central Park is a slightly more complicated case. Cooper was caught on video reacting in a reflexively racist way to a Black man who just wanted to protect some birds from getting gored by an off-leash dog, threatening to unleash some unpredictable police response upon him. She was quickly doxxed, and angry internet hordes demanded she be fired from the investment firm that she worked for. The firm, Franklin Templeton didn’t hesitate to fire her to protect its own reputation. But even Amy Cooper deserved due process.                                    

The targeted campaign against the investment firm arguably made      Cooper’s behavior in Central Park a work-related cause of damage to her employer’s business. More relevant is how uncomfortable her presence in Zoom meetings and on email CC lines would be for her co-workers in the immediate aftermath of her scandalous behavior. It would not be unreasonable for an employer to move directly to a suspension under those circumstances. It could be a suspension without pay while she cooled her heels and consulted with anyone willing to represent her in an appeal. If the employer decided that her time away from regular duties should be spent in implicit bias training or anger management counseling, then the suspension could continue some form of compensation.

If the goal of “cancel culture” is to “make racists afraid again” by making their despicable behavior carry real-world consequences, then Cooper very nearly losing her job would likely have been as effective as her actually losing her job. And under a just cause standard, she probably wouldn’t have been immediately fired for this one terrible offense.

Let’s look at one more example. In a widely-discussed piece for New York Magazinecritiquing “cancel culture,” Jonathan Chait complained about the firing of a political data analyst named David Shor. In Chait’s telling, Shor tweeted a link to a paper by Princeton Professor Omar Wasow, which showed that non-violent protests increased the vote for Democrats, whereas protests viewed as violent increased the vote for Republicans. What followed was a Twitter debate between Shor and several others concerning the propriety of Shor posting the paper, wherein Shor was accused of racism and his employer was tagged. A few days later, Shor was fired from his job.

Chait uses the Shor episode, along with several others, to point to a “left-wing illiberalism” that seeks to silence people with opposing viewpoints. However, in Chait’s examples and his discussion of the problems, he almost wholly lets the employer off the hook. He engages in no discussion of at-will employment or how Shor’s employer should not have been permitted to fire him for a “superficially innocuous” tweet, but instead blames “leftists” and “the far left” for causing Shor to lose his job. Nowhere does Chait even mention that it was not the Twitter users who fired Shor, but his boss.

The problem for Chait was a “cancel culture” that included everyone except the powerful arbiter of speech who actually canceled his employment—his boss.

The cause must be just

In her 2017 book, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It), University of Michigan professor Elizabeth Anderson argues that we think too narrowly about the power and ubiquity of “governments.” We almost exclusively focus on the power of the politicians we elect while ignoring the far more coercive power of our bosses. All workplaces have a system of government. In the United States, a unionized workplace is like a constitutional monarchy. We have some rights and can petition the King. A non-union workplace is a dictatorship. Left-wing activists need to think twice before appealing to the authoritarian power of a boss. Even if the cause of anti-racism is just, the boss’s arbitrary authority to punish his employees for what they do in their private time is a massive restriction of our civil rights.

Corporations are only temporarily embarrassed when right-wing employees spark a controversy. But corporations actually dislike left-wing ideas and are usually all-too-happy to find an excuse to quash them, leaving progressive activists far more vulnerable to campaigns of harassment targeted against their livelihoods. This can be seen in academia, where there has been a multi-year effort to police the speech of academics—on anything from the 1619 Project to the BDS movement—that’s viewed as too far left. Critics have tried to force risk-averse university administrators into firing such professors for tweets that get caught in the right-wing media echo chamber.

All workers deserve just cause protections, and we need to fight for this right as a matter of principle and self-defense. This can be done without endorsing an alliance with the boss that enshrines a broad unchecked power to fire at-will employees.

This blog originally appeared at In These Times on July 29, 2020. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

About the Author: Shaun Richman is an In These Times contributing writer and the Program Director of the Harry Van Arsdale Jr. School of Labor Studies at SUNY Empire State College. His new book, Tell the Bosses We’re Coming: A New Action Plan for Workers in the Twenty-First Century, is out now from Monthly Review Press. His Twitter handle is @Ess_Dog.


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Uber has started firing employees following harassment probe

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Heads are starting to roll at Uber following thecompany’s internal investigation into hundreds of claims regarding sexual harassment, discrimination, retaliation, and other workplace transgressions. The ride-sharing company has fired at least 20 people, Bloomberg reported on Tuesday.

Perkins Coie LLP, the legal firm hired to conduct the investigation, handed out recommendations to Uber executives regarding the 215 human resource claims submitted for review.

No action was taken on 100 of those claims, while 57 are still being investigated. In addition to the firings, 31 Uber employees are in counseling or training, and seven have gotten written warnings.

The dismissals follow revelations from former engineer Susan Fowler, who published a story in February detailing her experiences with unchecked harassment at the company. CEO Travis Kalanick then fired engineering VP Amit Singhal for his history of sexual harassment allegations. Following Fowler’s blog post, Kalanick pushed forward with an investigation and vowed to root out injustice.

“It is my number one priority that we come through this a better organization, where we live our values and fight for and support those who experience injustice,” he said in a memo to employees in February.

The company has since suffered several public relations disasters, including a messy lawsuit with Google over their rivaling self-driving car programs, video of Kalanick berating an Uber driver, his former girlfriend seemingly confirming the company’s sexist culture, losing its communications and policy head, the suicide of one its black engineers after just months on the job, and activating (and then removing) surge pricing following the London attacks in June. Uber also kicked off the year with driver protests and the loss of more than 200,000 customers in response to the company’s initial tepid stance on the Trump administration’s travel ban targeting predominantly Muslim countries.

More recently though, Uber has made some dynamic hires that could help the company’s persistent diversity problem. In January, Uber hired Bernard Coleman as the company’s global diversity and inclusion head.

Coleman, who oversaw the company’s release of its first diversity report in March, said the report was “the first step of many” to help improve workplace culture. “I’m kind of excited to see some progress,” he said at TechCrunch’s diversity and inclusion event in San Francisco Tuesday. “I want to make Uber a better and better place to work.”

As of this week, Uber also hired Harvard Business School’s Frances Frei will join the company as its first senior vice president of leadership and strategy, Recode reported. The academic and prominent business management expert will occupy a broad role that covers training managers, executives, recruiting, and overall coordination with Uber’s human resources department leads. Uber has also reportedly hired Bozoma Saint John, Apple Music’s head of global marketing.

This article was originally published at ThinkProgress on June 6, 2017. Reprinted with permission. 

About the Author: Lauren Williams is the tech reporter for ThinkProgress. She writes about the intersection of technology, culture, civil liberties, and policy. In her past lives, Lauren wrote about health care, crime, and dabbled in politics. She is a native Washingtonian with a master’s in journalism from the University of Maryland and a bachelor’s of science in dietetics from the University of Delaware.


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Woman sues Walmart after being told to ‘choose between her career and her kids,’ then fired

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Women filing discrimination lawsuits against Walmart are nothing new. Walmart firing people for questionable and controversial reasons is also nothing new. Now a woman is suing the low-wage retail giant, saying she was fired after complaining about discriminatory treatment. Specifically, Rebecca Wolfinger says her boss told her she had to “choose between her career and her kids.”

Wolfinger’s suit focuses on what she claims was her mistreatment while working as a shift manager. She was being required to work seven days a week when she received the “career or kids” threat, she contends.

Other male shift managers weren’t on a seven-day work schedule, Wolfinger claims. Her February 2012 firing occurred after she reported her boss’ comment to a company human resource officer, the suit states.

Wolfinger was officially fired, she says, for selling Pampered Chef outside of work—but coworkers who engaged in similar activities weren’t fired. And of course a sophisticated company like Walmart doesn’t admit to having fired someone for complaining about illegal discrimination.

Several years ago, 1.5 million women who worked or had worked at Walmart attempted a class action lawsuit against the company, only to have the Supreme Court say that “[e]ven if every single one of these accounts is true, that would not demonstrate that the entire company operate[s] under a general policy of discrimination.” That’s despite evidence like this:

Many female Walmart employees have been paid less than male coworkers. In 2001, female workers earned $5,200 less per year on average than male workers. The company paid those who had hourly jobs, where the average yearly earnings were $18,000, $1.16 less per hour ($1,100 less per year) than men in the same position. Female employees who held salaried positions with average yearly earnings of $50,000 were paid $14,500 less per year than men in the same position. Despite this gap in wages, female Walmart employees on average have longer tenure and higher performance ratings.

Doubtless all just a coincidence, though. Just like Rebecca Wolfinger was coincidentally fired for something that other workers did after she reported being discriminated against.

This blog originally appeared in dailykos.com/blog/labor on January 13, 2016. Reprinted with permission.

Laura Clawson is the Daily Kos contributing editor and has been since December 2006.  She has also been the labor editor since 2011.


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Strangers Raise Money For Walmart Worker Fired For Picking Up Cans

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AlanPyke_108x108When a parking lot attendant dared to recycle trash he picked up outside an upstate New York Walmart, the store fired him. Now generous strangers are trying to help cushion his sudden fall.

Thomas Smith, 52, had been earning $9 an hour at an upstate New York Walmart for less than three months when his manager terminated him over the cans. Smith was in charge of rounding up shopping carts from the lot outside the store, and started collecting trash from the lot while making his rounds. After storing up cans for a couple months, he recycled them in the store’s machines in early November. He got $5.10 for them.

Then he got fired. His manager told Smith his actions were “tantamount to theft of Walmart property,” the Albany Times Union reports, and said he would have to repay the $5.10 or lose his job. Smith, who commuted an hour by bus from Albany for the job, returned to the store two days later with the cash. But he’d already been fired.

“I didn’t know you couldn’t take empties left behind. They were garbage. I didn’t even get a chance to explain myself,” Smith told the paper. He also said his manager told him that a coworker who’d been caught stealing cash from a store register was allowed to keep her job because she repaid the theft and “because she has five kids.”

That thief was white. Smith collected trash while black.

The store manager who made the decision refused to speak with the Times-Union, and a Walmart spokesman told the paper it does not comment on personnel matters. After the story got picked up by local TV news, a company representative claimed Smith had admitted to stealing from inside the store itself. “They certainly didn’t indicate that both when I talked to them and our attorney talked to them,” Alice Green of the Center for Law and Justice said of that claim. Smith says he wrote out a statement for managers acknowledging he’d recycled the cans and no more.

Smith’s story has prompted strangers to send money through the crowdfunding site GoFundMe. So far the effort has collected more than $2,200 – an amount Smith would’ve had to work more than six weeks at full-time hours to earn.

While going viral for his sudden termination from a low-wage job has provided some short-term help, Smith will likely still have a hard time getting back on his feet. He was paroled in May after more than a dozen years in prison for armed robbery. He’d spent four months homeless after his release before finding housing through a charitable group. The Walmart job would have been one of his first, if not his very first, opportunities since his release for earning a living and achieving a degree of economic independence.

Formerly incarcerated people face immense hurdles to re-entering society and the workforce. Trust is hard to come by. Many job applications feature a check-box requiring applicants to volunteer information about their criminal history, which generally ruins their chances of even getting an interview.

The rejection naturally encourages desperate people to return to criminal activity for an income, as Glenn Martin, who now runs a non-profit that works with the formerly incarcerated and wasturned away from 50 different jobs in the month after his own release from prison, has described. Activists like Martin say efforts to reform the criminal justice and prison systems should include “ban the box” measures to restrict how hiring managers can ask about criminal histories – something President Obama recently did for federal hiring practices – and a revamp of education programs behind bars.

Since being fired, Smith has gotten plugged in with a legal aid group in Albany that is helping him recover his footing and that may eventually help him sue Walmart over his treatment. For now, though, he’s more worried about how he’s going to buy Christmas presents for his two teenage children.

This blog was originally posted on Think Progress on November 20, 2015. Reprinted with permission.

About the Author: Alan Pyke is the Deputy Economic Policy Editor for ThinkProgress.org. Before coming to ThinkProgress, he was a blogger and researcher with a focus on economic policy and political advertising at Media Matters for America, American Bridge 21st Century Foundation, and PoliticalCorrection.org. He previously worked as an organizer on various political campaigns from New Hampshire to Georgia to Missouri. His writing on music and film has appeared on TinyMixTapes, IndieWire’s Press Play, and TheGrio, among other sites.


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Blog #12. Fired in Real Time: From Fired to CEO

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Image: Bob RosnerWhen I was fired I had no idea that within a month I’d be firing people. You just can’t make this stuff up.

The evening that I was fired I got a call from a friend who invited me to help with his start-up. Pretty quickly we realized that the organization was in real trouble. Within weeks he asked me to fire the CEO and to take over leadership of the company.

Before you jump to the conclusion that this is a rags to riches story, until we raise money for the new business I’m still in rags. I’ve just got a better title. Hopefully we’ll raise money soon and I can stop volunteering and start getting paid. At least that’s the plan.

It’s interesting to get fired and fire someone within a month. Instead of being disconnected from their emotional state, you become like a ping pong ball, bouncing across the table from the firer to the firee. Anyone who has to fire someone should have this level of insight about what’s going on inside of everyone’s head.

I’ll give you one example. At one point the subject of turning off the ex employee’s email came up. I said that we wound need to do this, but it could take a few days. Outside of humiliating the employee, it just didn’t make any sense to shut off their email immediately. Especially since there is stuff in their email box that will help the company moving forward.

Unfortunately he wasn’t the only one who needed to be let go. Most of the staff followed him out the door.

But the meeting where people were let go was one of the most surprising of my business career. Not only didn’t anyone complain, the staff just wanted to talk about what could be done to save the business. A few people even volunteer to continue to contribute without being paid.

It was one of the most amazing things I’ve ever seen. Which leads to my biggest piece of learning from this whole experience. It can all be summed up in one word, pride.

As much as people complain about work and their jobs, most of us derive great satisfaction from punching the clock. Like it or not, work plays a central role in most of our lives.

I’m reminded of the time I was getting a haircut. The barber was yawning a lot. I asked him if he’d been up partying the night before. He said no, that he’d given a bad haircut the night before and whenever that happens he ends up spending most of the night tossing and turning in bed.

Who knew that people could approach their jobs with such a sense of pride?

I’m going to try to carry the emotional pummeling of my firing with me every day for the rest of by working career. Because I think it is essential to never become disconnected from the pain and humiliation.

We can all rise from the ashes of a firing. But it takes a lot of rebuilding of your confidence along the way. The good news? There are a lot of people who are taking a similar journey. Hang in there.

My a-ha: There is life after being fired. Even success.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]


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Blog #10. Fired in Real Time: Keeping the Faith

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Image: Bob RosnerWant to know what it feels like to be fired?

It’s easy, go out and let all the air out of your car’s tires. Sure you can get from point A to point B, but it’s a bumpy and precarious ride. Welcome to life as a recently fired person.

Your immediate concern after being fired isn’t yourself, it’s all the colleagues, friends and potential employers that you’ll want to connect with. Your question is how you can present a good face to all of them? But the reality is that the problem isn’t a “them” question. It’s a “you” issue.

This advice is going to sound pedestrian. But you need to start very simply with a list of things that will boost your confidence and feelings of self worth. Exercise, volunteering, taking courses, escapist entertainment, etc. Generally anything that helps you to smile or otherwise improve yourself would fit into this category.

Unfortunately those are not the places that most of us logically turn. Alcohol, drugs, overeating, gambling, are the places that often provide an overwhelming gravitational pull during tough times.

So the big challenge is how to avoid negative addictions so that you can pursue positive ones. Damn, if it were only that easy to do.

But that is only the first step. What you quickly learn is how quickly salt water can be unexpectedly poured into your wounds. This happens whenever your former job is brought up. For me, luckily, it was at a dinner party. Someone asked about my job and I just went off. Trashing my boss and the way I was treated. Wow, even as it was coming out of my mouth I was surprised at my anger about the whole situation.

Anger. It’s there whenever you’re fired. So you’ve got to learn how to deal with it.

I’ve now learned how to be circumspect about the entire ordeal. But you need to realize that gaining confidence and self-esteem are just the first step. You’ve got to learn how to dispassionately discuss what happened to you in bland and forgettable language. “We didn’t see eye to eye.” “Creative differences.”

The challenge is how ultimately contradictory this process is. You need to find the confidence to not trail blood into your next job interview. At the same time you have to process your anger and learn how to talk about what happened dispassionately.

And you thought doing a job could be complicated?

My a-ha: Self-esteem and self-awareness can lead you out of the wilderness, but it’s a complicated dance.

Next installment: Networking When Not Working

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]


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Blog #5. Fired in real time: What the fallen need to hear

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Image: Bob RosnerOn Friday I was fired.

It’s 48 hours later, and I decided to blog about the emotional roller coaster ride that I unexpectedly found myself riding on. I’m never going to mention the name of the company, because its not about them. It’s about anyone who has ever been fired, and the journey that we all must take after we’ve been let go.

Friends who saw me immediately after my firing have told me that I appeared to be in shock. Okay, normally I’m at best slightly tethered to reality, but even for me the tether got stretched.

Friday at 9:04 pm I got a call from a friend named Steve. His call reminded me of when the doctors in the ER are faced with an irregular heartbeat. They “zap” the patient with a electric jolt from a defibrillator to get the heart beating normally again. Steve’s call, thankfully, did that for me.

“Hey Bob. This is Steve calling. It’s Friday evening. I just heard that you had a situation with your job today. Having been in this position myself, I understand how you may feel about this. I think it’s important to tell you at this time that you have lots of friends and lots of support. Just because an idiot does something to you doesn’t mean that you can’t go on and be wildly successful. Again I want to tell you that you have lots of support. And should you want to talk or grab a cup of coffee, you know how to reach me. Mainly I just want to say that regardless of whether this was fair or unfair, I’m reasonably sure it was unfair, you have lots of support and I just want you to know that. And there are people backing you up. I would say have a nice night, it probably won’t be that, but you do have friends. I’ll talk to you soon.”

I called Steve back and he told me about his experience being fired. Only one person called him, Seattle baseball announcing legend Dave Niehaus, a guy who’d been fired more than a few times early in his career. Steve said even though we weren’t great friends, he was going to be sure that I wasn’t alone on that Friday night.

Why do so few people reach out to someone who has been fired? Sure we can all rationalize that we want to give the person space to grieve on their own.

Or does it have nothing to do with the person who was fired? Is it really all about how tenuous we all feel about our jobs. And calling someone who was fired makes us fearful, that like leprosy, we could somehow catch the firing virus.

Reach out to your friends and colleagues who have been fired. If for no other reason than you’d like them to do the same for you.

My a-ha: Offer support and friendship to people who’ve been fired. Say to them, what you’d like to hear, if the situation was reversed.

Next Week’s installment: Do you ever say the “F” word?

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected].


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