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A Sackable Offence? Employers’ Responses to Public Shaming

By Paul Billingham and Tom Parr

The Ramble, Central ParkThe Ramble, Central Park” by Phil Whitehouse. Used under: https://creativecommons.org/licenses/by/2.0/

On May 25th 2020, Christian Cooper was birdwatching in The Ramble, an area in Central Park, New York, where dogs must be leashed. He encountered Amy Cooper (no relation) and asked her to put her dog on a leash. She refused, and during the resulting confrontation she called 9-1-1 to say that she was being threatened by “an African American man”. This incident was recorded, the video was uploaded to social media, and it went viral within hours. Amy Cooper’s conduct was widely condemned as racist by very many viewers who reasonably interpreted her as falsely reporting a threat from a person of colour and, in doing so, perhaps endangering his life – something emphasized by the tragic killing of George Floyd by a police officer on the same day.

In a recent article, we develop a framework for assessing the justifiability of this kind of public shaming, where public moral criticism is directed at someone who has violated a morally authoritative social norm.[1] We note that this practice can serve three valuable functions: it can communicate our condemnation of norm-violating behaviour, strengthen our shared sense of commitment to a social norm, and deter further wrongful conduct. But, for public shaming to be justifiable, we believe that it must meet five constraints, some of which are influenced by the just war literature. First, it must be necessary, in the sense that there is no less harmful way to achieve its ends. Second, it must be proportionate, meaning that the negative consequences must not be excessive in comparison with its positive consequences. Third, while drawing attention to the conduct of norm violators, public shaming must nonetheless respect rights to privacy. Fourth, it must be non-abusive. And finally, it must not permanently stigmatize its target, but must make reintegration possible.

Rather than run through all of these conditions in relation to the Cooper case here, we want to focus on one intriguing feature of it: the fact that, following a brief internal review, Amy Cooper’s employer terminated her contract the day after the video of her conduct was posted. Defending this decision, a spokesperson for the company announced that “We do not tolerate racism of any kind at Franklin Templeton”. This raises an interesting yet neglected question: Should employers enjoy the right to sack members of staff for how they act outside of work hours?

 

“… as the public turn on an individual whose conduct has been brought into question, employers often give in to calls to act in an attempt to preserve their public reputation.”

 

We recognize that this isn’t the most politically urgent aspect of the case, nor is it the only part that throws up difficult philosophical problems. Rather, we focus on the sacking of Cooper because her employer’s reaction was not atypical: as the public turn on an individual whose conduct has been brought into question, employers often give in to calls to act in an attempt to preserve their public reputation. This occurred in prominent cases involving Tim Hunt, Justine Sacco, and Lindsay Stone, to name just a few (see our ‘Enforcing Social Norms: The Morality of Public Shaming’ for details).

One immediate concern with employers enjoying the right to sack employees in cases such as these stems from the requirements of proportionality. Specifically, the concern is with narrow proportionality: the consequence of losing one’s job might exceed the burdens to which the target of public shaming has made herself liable through her conduct. Even if Cooper acted wrongly – perhaps even seriously wrongly – by calling 9-1-1, it’s unclear whether her conduct was so wrongful that it could justify the burdens that she suffered. Indeed, reservations of this kind were expressed by Christian Cooper himself, who said “I’m not excusing the racism. But I don’t know if her life needed to be torn apart”.

Certainly, concerns about proportionality are central to our understanding of this case, as well as to cases of online public shaming more broadly. A main reason for why so much online public shaming is wrongful is that it imposes burdens on the target that vastly outweigh that to which she’s made herself liable. Moreover, this is no mere accident. Rather, as we argue elsewhere, it results from the decentralized nature of the practice that involves the efforts of many thousands of individuals who like, comment, and share online material, often with little or no accountability. Given this tendency, we may have sound reasons, rooted in a concern to protect individuals against disproportionate burdens, to enact laws that provide employees with greater protection against being dismissed for actions outside of work that are deemed to damage their employer’s reputation and profitability.

Of course, there may be particular cases where, given the severity of the wrongdoing, it would be proportionate for an individual to lose her job over an incident. And, perhaps this is true for Amy Cooper. She put Christian Cooper at risk of severe harm, perhaps even death, by calling the police and, in a terrified voice, asking them to come immediately because an African American man was threatening her. Imposing such risks can itself be wrongful, even when the harm itself doesn’t eventuate.[2] It is important to recognize here that Cooper’s wrongdoing must be understood in the context of the USA as a highly racialized society where police violence toward African Americans is common. Her act would not be nearly so wrongful in a non-racialized society. She would still have been lying, since Christian Cooper was not threatening her in any way, but she would have not been exposing him to the risk of such grave harm. Given the specific context, perhaps this is a case where being fired is proportionate. At least, this line of reasoning merits consideration. However, even if this is true, we suspect that these cases are rare, and the existence of these anomalies does little to undermine the proportionality-based case for stronger employee protections.

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Crucially, though, viewed in this light, the justifiability of sacking an employee turns on a particular calculation regarding the size and distribution of the benefits and burdens involved. However, some might insist that it’s a mistake to frame the issue in this way. We might think that, aside from worries about proportionality, a further concern is that what individuals get up to in their private lives should not be the business of their employers. On this view, the reason that employers should not enjoy the right to sack members of staff for how they act outside of work hours is not (only) that the likely consequences of exercising such a right would be disproportionate, but that employers should not enjoy this kind of control over their employees’ lives.

There are different ways in which to flesh out this line of reasoning. According to one account, it’s always wrong for firms to sanction an employee for what she does when off duty. In the case that we’re considering, we might think that Franklin Templeton can expect its staff to uphold various standards while at work but that it’s none of their business what individuals do outside of those hours.

Of course, this raises some tricky questions, since an individual’s off duty behaviour can sometimes have a direct bearing on her workplace performance. For example, is it permissible for a church to fire a priest for having an affair, given that this is strongly at odds with the values he’s employed to promote?[3] Similarly, Franklin Templeton might maintain that Cooper’s outburst would have affected her work: not only might some employees feel uncomfortable working alongside her, they might feel uncomfortable if their firm failed to condemn her behaviour.

 

“We might think that, aside from worries about proportionality, a further concern is that what individuals get up to in their private lives should not be the business of their employers.

 

Moreover, the fact that Cooper is facing charges of filing a false report should prompt us to consider what difference it makes when an employee is accused of criminal misconduct. Intuitively, there are some cases where it seems that employers should be permitted to fire their staff for illegal actions performed outside of work, even if those acts don’t bear in any obvious way on that individual’s workplace performance.[4] Again, then, we would need to qualify the view that it is always wrong for firms to sanction employees for non-work activity to deal with such cases.

A rather different view is that, though it’s permissible for firms to take an interest on their staff’s conduct outside of work hours, we must recognize that this is a burden that calls for compensation. Here, the concern is not merely that firms place demands on how individuals may act in their private lives, but that firms tend not to reward employees for bearing these burdens. The implication of this claim is that, to the extent that this practice is morally problematic, it’s because it represents a general worsening in the value of individuals’ employment opportunities. On this view, if firms want to include conditions in employees’ contracts that forbid them from acting in ways that bring the organization into disrepute, then it’s fine for them to do so but only if employees are remunerated appropriately for this. The plausibility of this view depends partly on whether it can give a satisfactory account of what constitutes appropriate remuneration for these burdens, since it isn’t at all obvious how one would calculate this.

If we accept this latter view, then the permissibility of Cooper’s sacking may depend on the details of her employment contract. For example, it’s important that employees are aware in advance that their conduct outside of work is under scrutiny and could lead them to be dismissed. This can’t be something that an employer decides after an episode of public shaming in an ad hoc manner.

In recent weeks, Black Lives Matter has highlighted the ongoing and severe nature of racial injustice, police brutality, and economic inequality. Viewed with this context in mind, Cooper’s conduct looks especially troubling and, like others, we believe it’s morally imperative to challenge behaviour of this kind. However, we’re suspicious of the idea that the best way to do so is for employers to sack their staff for off-duty conduct. This is not only because giving firms these rights is likely to lead to more disproportionate public shaming, but also because we have reservations about the control of employers over their staff’s private lives.[5] Working out how best to cash out those reservations is difficult, and our aim here is simply to highlight this question as an important and pressing issue for further thought, as well as to indicate a couple of rival answers.[6]

[1] Paul Billingham and Tom Parr, ‘Enforcing Social Norms: The Morality of Public Shaming’, European Journal of Philosophy (online first). See also Paul Billingham and Tom Parr, ‘Online Public Shaming: Virtues and Vices’, Journal of Social Philosophy (Online First).

[2] For discussion of the wrong of risk imposition, see Tom Parr and Adam Slavny, ‘What’s Wrong Wish Risk?’, Thought, 8 (2019), 76-85.

[3] Elsewhere, Billingham argues that churches should be permitted to fire employees in such cases. See Paul Billingham, ‘The Scope of Religious Group Autonomy: Varieties of Judicial Examination of Church Employment Decisions’, Legal Theory, 25 (2019), 244-271.

[4] Our sense is that the offence for which Cooper has been charged – filing a false report – is not such a case. We would need further argument to justify this claim, but one obvious thought is that it is too minor an offence.

[5] Should the same moral and legal principles that govern the firing of employees in response to public shaming apply to the hiring of prospective employees as well? That is, should we treat hiring and firing symmetrically or do we have reasons to treat these practices differently? This is an interesting question, which we set aside for reasons of space.

[6] Thanks to Romy Eskens for excellent comments.

Disclaimer: Any views or opinions expressed on The Ethical War Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.

Published 9th July 2020

Paul Billingham and Tom Parr

Paul Billingham is Associate Professor of Political Theory at the University of Oxford and a Fellow of Magdalen College, Tom Parr is Assistant Professor in Political Theory at the University of Warwick

Paul Billingham is Associate Professor of Political Theory in the Department of Politics and International Relations, University of Oxford, and a Fellow of Magdalen College. Most of his research focuses on debates within political liberalism and concerning the place of religion in public life. He is currently particularly interested in collective religious liberty. With Tom Parr, he has also written on the morality of public shaming (as this blog post proves).

Tom Parr is Assistant Professor in Political Theory in the Department of Politics and International Studies at the University of Warwick. During the 2020-21 and 2021-22 academic years, he will be a Marie Curie Individual Fellow in the Department of Law at Universitat Pompeu Fabra, where he will work on questions relating to social justice and the future of work. With Paul Billingham, he has also written on the morality of public shaming (as this blog post proves).

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