Could Cancel Culture Reshape At-Will Employment?

What Is “Cancel Culture?”

“Cancel Culture” is roughly defined as the termination of products, social media, and employment relations based on perceived racism, accusations of sexual assault, and/or other offensive speech or actions. Some examples from 2020 include:

• Amy Cooper, a woman who has been accused of making false police reports about robbery when a black man asked her to put her dog on a leash while the two were in New York Central Park. Ms. Cooper has since been terminated from her place of employment.
• Bill O’Reilly and Bill Cosby were pulled off television after sexual assault accusations became public.
• Removal of statues from American cities and towns deemed offensive by protesters.
• Renaming of country music groups such as “Lady Antebellum” to “Lady A” and the “Dixie Chicks” to “the Chicks.”
• Public pressure to remove and press charges against all four police officers involved in the killing of George Floyd.

Cancel culture has existed before the internet as a means of public pressure against individuals and companies for failure to adhere to the social standards of the time. Previous “cancel culture” in the 1990s and early 2000s, including the game Dungeons and Dragons, Harry Potter, and country music band the Dixie Chicks, were notably motivated by public sentiments against witchcraft, Christianity, and anti-war protestors.

However, the internet has given new power to these movements. Techniques such as “doxing” enable internet groups to publicly identify otherwise anonymous persons who make certain statements. The internet also archives every person’s social media statement – a statement made ten or fifteen years ago could conceivably cost a person’s job in the future.

Why Is Cancel Culture Controversial?

Opponents of “cancel culture” argue that it nothing but mob mentality that punishes for every little misstep. It is arguable a violation of free speech and due process to terminate someone based on statements that may not reflect who that person is. Opponents also contend that is an erasure of history.

The proponents of cancel culture argue that it is legal for businesses to terminate employees or contracts that would otherwise result in bad publicity – and thus loss of revenue – for them. Activists contend that cancel culture is necessary to reduce racism in society.

What Is At-Will Employment?

At-will employment is the legal doctrine that both employer and employee should have the right to terminate their relationship at any time and for any legal reason. Illegal reasons are generally limited to two rationales: unlawful discrimination and violation of an explicit employment contract.

1. Unlawful Discrimination – Generally includes race, religion, sex, gender, and national origin. Some states may have more protections but states cannot have less protection than the federal Civil Rights Act. Notably not all discrimination is illegal (see below).
2. Violation of an Employment Contract – Some employment relationships may have contracts that guarantee a set duration or limit termination to certain causes. Although the law doesn’t make such requirements, the law does expect parties to abide by the contracts they enter into.

Why Is It Illegal To Fire an Employee Because of Their Race But Legal to Fire an Employee for Making Racist Statements?

At-will employment is the cause of “cancel culture” as a means of addressing perceived racism and the cause of hostile work environments that enables racism to exist in the workplace. However, at-will employment is typically done in service of the almighty dollar regardless of whether it is giving alleged racists the boot or to shove whistleblowers out the door. Civil rights laws are designed to prevent the latter by making it extremely expensive to follow through on such terminations. Should the former be given the same consideration?

Race is a protected class because it is generally immutable. People are born White, Black, Hispanic, and Asian, etc. with no choice or input as to what they look like. As skin color is so noticeable, it is also easy to discriminate against. This isn’t to say it’s impossible to fire a black person; it’s that an employer cannot terminate an employee just because he or she is black.

In contrast, statements about race are driven by choices. A person can choose not to say or make certain statements. Terminating an employee for making a statement about race does not violate that employee’s free speech rights if the employer is not a government entity. The Constitution only constrains government action. Private companies can terminate employees for any reason except for an illegal reason.

However, some jurisdictions do make it illegal to terminate an employee based on his or her political affiliations. Ironically, California has had laws against political discrimination for decades. It’s arguable whether such laws are enforced equally in CA, but at least the golden state has such laws. There is no comparable anti-political discrimination law at the federal level nor do many states even have such laws.

Cancel Culture Exists in the Absence of Government Action

Cancel culture arguably exists as a reaction to perceived racism in society and government’s failure to take action against it. The federal government has taken no action against racism and/or police brutality in spite of the sheer ferocity of the George Floyd protests and riots. Cancel culture will arguably continue until the government passes legislation similar to the Civil Rights Act to address police brutality and racism.

Do I Need a Lawyer to Help with Issues Regarding At-Will Employment?

If you have been terminated, it may be in your best interest to contact an employment lawyer. An attorney can counsel you about your rights as an employee and can determine whether any of those rights have been violated. They can also represent you in court if it becomes necessary.