The boundaries of what workers can say are shifting. Photo / 123RF
How wary should companies be of employees' comments on sensitive issues?
Almost exactly four years ago, a facilities manager called Angela Gibbins saw a photo of Prince George on Facebook, accompanied by an unpublishable epithet.
Gibbins added her own opinion about the three-year-old prince. "White privilege," she began. "That cheeky grin is the (already locked-in) innate knowledge that he is Royal, rich, advantaged and will never know *any* difficulties or hardships in life."
She was writing from home, and her Facebook account was private. But the next day the Sun newspaper published her comments, linking them to her employer, the British Council. A firestorm began, and Gibbins was sacked for gross misconduct. An employment tribunal found that, even though she was a committed republican, her dismissal was justified.
Gibbins's case is a reminder that it's nothing new for employers to place limits on free speech. What's more, those limits have not always been pushed by the progressive left.
Even so, we are living through a phase of heightened tensions. There is a revolution in social attitudes. Black Lives Matter and LGBT rights once seemed mainly political issues. Now, they have become central to corporate values. The boundaries of what workers can say are shifting.
Earlier this month, San Francisco Museum of Modern Art's senior curator Gary Garrels said that it would be "reverse discrimination" if the museum stopped collecting works by white men.
He apologised, but his comments triggered an online petition from former staff members demanding his departure as "non-negotiable". Garrels resigned. "I realise that in the current climate, I can no longer effectively work at SFMOMA," he told staff.
In June, a British author called Gillian Philip tweeted support for author JK Rowling's views on biological sex, which trans campaigners regard as deeply misguided and offensive. The company for which Philip wrote dropped her from a children's franchise, saying it had to "be inclusive for all readers".
Critics have labelled such incidents "cancel culture", where individuals are forced out of organisations, or feel they must remain silent within them, because of controversial views. Those on the progressive left prefer to label them accountability, highlighting that people of colour and LGBT people have historically been the ones punished for speaking out, and that companies have a right to choose who represents them.
Perhaps it's inevitable that the workplace would become political. It is where discrimination often happens. Half of black Britons say their career has been affected by their race. One-third of trans workers say they have been subject to negative comments or conduct in the workplace in the past year because they are trans.
Many companies have allied themselves with social movements to empower LGBT people and people of colour. They have publicly backed Pride and Black Lives Matter, and promised to address structural bias and under-representation. They have created an expectation, among some activists, consumers and employees, that they will stand up to those who question how matters such as trans rights and racial equality are pursued.
One difficulty, however, is that companies are coalitions of people with different politics. Inside almost every large organisation there are likely to be differences of opinions on what equality means and how much action it requires. There are generational splits, too. A blue-chip employee could be fired for repeating words spoken by the US president. In a world of social media and group messaging, these divides struggle to be kept private.
During a virtual staff meeting at the professional network LinkedIn last month, a white employee commented that they objected to feeling "guilty of my skin color". LinkedIn's chief executive Ryan Roslansky later apologised for the "offensive" comments. He vowed that, in future, staff members would not be able to leave anonymous messages and suggested that global staff meetings would reflect regional differences.
Other cases are not so clear-cut for HR departments. What happens when a female worker says she does not feel comfortable in a bathroom used by a transgender colleague? Or when a white employee questions the basis for implicit-bias training?
Many companies want to "do the right thing" on race and LGBT issues, or at least be seen to do the right thing. But who defines what the right thing is? Is there scope for workers to disagree on the meaning of being anti-racist and being pro-trans? Where is the line between free speech and harassment?
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If you are a company employee in the US, you have virtually no right to speak freely and keep your job. "Most [US workers believe] that their boss cannot fire them for their off-hours Facebook postings, or for supporting a political candidate their boss opposes. Yet only about half of US workers enjoy even partial protection of their off-duty speech from employer meddling," wrote Elizabeth Anderson, a philosophy professor at the University of Michigan, in her 2017 book Private Government. She likens companies' powers to "communist dictatorships" — extending not only to off-duty speech, but to political views and drug and alcohol consumption.
European workers have more protection, including rights to free expression and to a private life in the European Convention of Human Rights. But the courts have been weak in deploying these rights in the workplace, says Virginia Mantouvalou, a law professor at University College London. Mantouvalou warns that employers may use controversial comments to sack people whom they would like to dismiss for other reasons.
This means that, for better or worse, employers have much discretion over how they handle employees speaking out. James Damore, a Google engineer fired in 2017 after writing an internal memo arguing that the tech industry's gender gap was not a result of sexism and women were less suited than men to working as engineers, had little chance with his dismissal claim. Juli Briskman, a US government contractor who was fired after giving Donald Trump's motorcade the finger the same year, lost hers.
Anderson argues that ordinary employees — those who are not spokespeople or powerful figures in a company — should not be held accountable for what they say off duty. If this were enshrined in law, firms "could credibly disavow what their workers say . . . It would free both firms and workers," she says.
Her vision is not a free-for-all. Senior staff would be held to a different standard. Harassment of co-workers would not be tolerated. On-duty comments, like Damore's, are different.
This is the tricky thing. In many cases, because discrimination debates have entered the workplace, this is now where controversial opinions are voiced. Debates also happen on social media, where there is no clear divide between work and personal personas.
In 2018, Maya Forstater was a researcher for the Center for Global Development think-tank in London. She tweeted her opinion that "male people are not women" — that is, people could change gender but not sex. She said she would generally call a trans or non-binary person by their preferred pronouns, but reserved the right not to.
Colleagues complained that her tweets were transphobic. There was no allegation that Forstater harassed anyone at work. Eventually, however, her contract with the think-tank was not renewed.
In the UK, workers are protected from discrimination on the basis of religion or other certain beliefs. Forstater argued that her position on trans rights amounted to such a protected belief, because it was the basis for supporting single-sex spaces for vulnerable women. An employment judge ruled against her, on the basis that her views were incompatible with other people's fundamental rights. Forstater's legal battle is ongoing.
Where does this leave other workers who share Forstater's views? More than 64,000 Twitter accounts have liked a blog by Rowling, which expresses support for Forstater.
Mermaids, a charity that supports trans children and has criticised Rowling, says that there is "a big difference between an honest belief, clumsily expressed, and deliberately setting out to humiliate people".
Simply sharing Rowling's blog online "mightn't necessarily be treated as a deliberate act of transphobia", Mermaids said in a statement. An employer could seek "a calm conversation, explaining why the article caused hurt and identifying common ground". But if an employee shared it "in a deliberate act of aggression and cruelty, then surely that should be treated as a severe case of harassment".
This leaves a large grey area: where someone shares controversial views, does not wish to cause hurt, but cannot find common ground with those who find the views offensive.
We have an internet culture where a large proportion of the population wants to share their views on public or semi-public forums. Many employees continue to express their views online, only vaguely aware that, like pedestrians crossing a busy road, they may be steamrollered by unexpected traffic.
Earlier this month, a group of 153 writers and intellectuals, including Noam Chomsky, Rowling and Salman Rushdie, signed a letter to Harper's magazine. They welcomed the overdue demands in the US for police reform and social inclusion. But they raised concern that, in the push for change, "norms of open debate and toleration of differences" were being weakened in favour of "ideological conformity".
"We need to preserve the possibility of good-faith disagreement without dire professional consequences," the signatories said.
In the liberal heyday of the 1990s, such sentiments would not have seemed controversial. Instead they were lambasted, particularly by millennial and Gen-Z progressives, as elitist, hypocritical and proof that self-described liberals can't stand criticism.
Even so, the letter did put its finger on something important. It is possible to celebrate the push to call out racism and intolerance while also wondering whether the moral absolutism and accusations of bad faith, which characterise so much online activism, are helpful.
What should happen, for example, to employees accused of harassment for expressing views that are widely held? Britons support the right of transgender women to use women's toilets by a margin of 46 to 30, but they oppose it where transgender women have not undergone gender reassignment surgery.
Kamal Munir, a fellow at Homerton College, Cambridge, argues that organisations need to find ways of having "awkward conversations": "If you say 'first time that you cross the line, you're out', no one is going to tell you what they really think."
In the aftermath of George Floyd's killing in Minneapolis, there was a video call to discuss what Homerton could do to eliminate racism. "One fellow, probably with the best of intentions, asked, 'Just because somebody got killed in the US, why does it mean we should start a forensic audit?'" recalls Munir, who is also a University of Cambridge racial inclusion champion.
Munir was determined to engage rather than censor. "You cannot make it personal . . . In 90 per cent of cases, when people start to think about the issue they realise that there's something going on."
Social media has taught us to place huge significance on performative moral statements. But what employees say is generally less important than what they actually do. I heard of one company where a group of white employees loudly demanded action on Black Lives Matter. Many were also later revealed by their co-workers to be those most likely to stymie the ideas of people of colour.
What matters too is how companies themselves act. Will their business decisions reflect a commitment to non-discrimination? Unilever's India arm has changed the name of its profitable skin-lightening range Fair & Lovely to Glow & Lovely, and promised to include women of different skin tones in its advertising. Johnson & Johnson will stop selling its Clean & Clear Fairness products in India altogether.
Meanwhile, Google has been pressured by some employees to stop selling products to the police. Such internal debates happen in part because companies have encouraged their employees to act as authentic individuals. To seek ideological conformity now would be to misunderstand how change happens.
"We employ adults. We should expect them to behave as adults. That includes having opinions," says David D'Souza, membership director at the Chartered Institute of Personnel and Development, an association for British HR professionals. "There is space for difference."
Almost exactly four years have passed since Gibbins accused a royal toddler of white privilege. She lost her job, the British Council's head of employee relations fell ill with stress, and another staff member retired and said she could not attend the employment tribunal because of the impact on her health.
If Gibbins posted the remark today, she probably wouldn't be fired. Those internet users who called her "racist", on the other hand, might face an online backlash. That is progress of a sort. But even when your side is winning, you can feel uneasy at the terms of engagement. To take part in today's culture war — without forgiveness — is to believe that you will be one who is fired last.
Over the next weeks and years, companies will draw new lines. They will have to work out where education stops and where punishment starts, where company values stop and individual freedom begins. In many disputes, both sides can claim they are exercising free speech, and both sides can claim they are being harassed.
We often grow up, hang out and converse online with people who think like us. At its best, the workplace can be where we are taken out of bubbles and confronted with different views and experiences. We will never agree with our co-workers on everything. That is why we go home.
Written by: Henry Mance
© Financial Times
