Organizational Responsibility
Laura McKenna has a piece up today about the responsibility of organizations to police their members outside of the time they are directly involved with said organization. She mentions two incidents, both well-covered in the media. The first is the Ray Rice spousal abuse situation. From McKenna:
The NFL president is pleading ignorance, which doesn’t seem entirely honest. Clearly, this Rice dude was worth a lot of money, and they didn’t want to damage that property. Also, I think that they didn’t consider the behavior of their players off the field to be any of their business.
The second item is the case of an autistic boy who was the victim of a horrible prank in Ohio involving the ALS ice bucket challenge. Again, from McKenna:
School officials were interviewed for the story. They said that this was indeed a horrible act, but they couldn’t expel the perpetrators, because the act happened outside of school grounds. Schools have taken a very strict line between things that happen during school hours and on school grounds versus everything else. Their responsibilities end when the kids take a step outside the school building. Even school buses are grey areas.
Having considered both events together, it now seems apparent that I have a personal dilemma in that my reactions seem to contradiction each other. Allow me to explain… On the issue of Ray Rice, yeah, he’s a guy who clearly committed a crime and if the courts want to pursue his punishment I am 100% behind that. But here is where I have a problem: He lost his job over the incident. On the surface it is easy to say that the NFL should have terminated him and this is justice. Upon further reflection though, I’m not so sure I would want the same amount of accountability for myself.
I don’t drink and drive but let’s say that I have a couple drinks too many at a bar, try to drive home and find myself in jail. Like Rice, whatever punishment the law decides for me is fair and I would accept it as the price for my crime. Let’s say though that somehow my employer finds out about what happened and they fire me because it affects the company’s image or something like that. Now this moment of poor judgement has resulted in me being unemployed. That punishes my family for my poor choices. It starts to feel very much like double jeopardy. On the other side, however, what if it was not my employer who cut their ties with me but a civic organization that I was affiliated with? Suddenly the punishment doesn’t seem quite so cruel.
One can argue that Rice is a public figure and a sort of entertainer. On those grounds, yes, image does matter. We’ve seen many public figures fired for far less over the years. The precedent seems to be that when the public knows about a crime or indiscretion by a member, organizations must cut ties or risk being seen as endorsing this behavior. What about a school though?
I’ve written here at Ordinary Times about my experience with private schools and my continued involvement as a board member with my alma mater should make it obvious that I have a lot of pride in that school and what it stands for. During my day no dount dozens of times times since, the school has occasionally had to discipline a student for an event that happened outside of school. Off-campus fights, drinking or even speeding tickets. Yes, speeding tickets. When I was a student, if you were caught speeding on the way to school the local police would turn your name into the school and you would receive a detention.
The message we were told over and over during my time there was that we represented the school 24 x 7. Students at the school carry plenty of backpacks, ball caps and apparel with the school name on it and the formal dress code means they are recognizable wherever they go. Misbehavior in public does indeed affect the school’s image in the public as I can attest to based on letters from concerned individuals that find their way to the principal’s office from time to time.
Every so often a student is expelled for an incident too serious to pardon. Usually it involves drinking or drugs and the school’s zero-tolerance policy is cited as the young man is shown the door. For a long time I thought this was fair, owing to the school’s existence as a private institution. In light of the comparison McKenna makes, I cannot wonder if this may be an overreach. Am I comfortable with saying that someone should not loose their job over an outside crime but they should lose their access to a top-tier education? Even when a private school isn’t involved, expulsions almost never work out well for the student. But man, I hate bullies and if ever some kids deserved to be expelled, it’s those assholes in Ohio.
So the question for today is this: Where do we draw the line between personal accountability, accountability to the law and accountability to the organizations we are affiliated with? Does the individual ever hold any power in this dynamic?
Mike Dwyer is a freelance writer in Louisville, KY. He writes about culture, the outdoors and whatever else strikes his fancy. His personal site can be found at www.mikedwyerwrites.com. You can also find him on Facebook. Mike is one of several Kentucky authors featured in the book This I Believe: Kentucky.
One way out of this predicament would be to say that schools are different than employment relationships. People sometimes identify with the schools they attend for a lifetime. It’s rare for that to happen with a company.
Unfortunately, even I don’t find that so convincing. If a student does something bad outside of school it certainly does reflect poorly on the school, but that isn’t necessarily justification for punishing him within the school’s infrastructure. There is a whole system set up for policing that kind of thing, and it should be made use of. I would suspect that the net result would be assault charges when someone gets in a fight at an off-campus club rather than being scolded by a school administrator, but maybe that would actually improve the school’s ability to protect its reputation.Report
This and the ongoing discussion of Rob Schneider (and whether or not he’s comparable to Brandon Eich) are convincing me that this is an issue that nobody has a really satisfactory answer for. There are a ton of smart people from various perspectives who all basically come down on “Is this appropriate? I’ll know it when I see it”.Report
Agreed. It’s incredibly how many details that I initially found to be tiny other people consider to be important. Even with only two possible answers, there seem to be an infinite number of ways to get there.Report
I actually think a large part of this discussion is clouded by the fact that both Eich and Schneider’s employment was contractual, and we, the people, are not privy to the details of their contracts that might or might not allow these things.
I don’t think it’s a problem of not knowing if someone should lose their job or not, it’s a problem of not knowing the details of their employment that spell out these details.Report
This. I also think, in this case, Vikram’s Law applies and we’re all eating kittens because no two cases are entirely comparable.Report
I don’t think these are the same at all, which is why I think looking at this from a legal perspective is helpful.
On Schneider, a private company stopped using a celebrity in ads because the celebrity publicized a stupid opinion that hurts the private company’s business. The celebrity has no legal right to continued appearances in ads unless he contracted for that right (and I doubt that very much).
Here, we are talking about public school students. Kids have a right/obligation to attend public school.
And for exactly that reason, the OP’s analogy is inapt. Kids do not have a right to attend private school, and presumably are admitted to that school subject to obligations including the code the OP describes.
I do think Vikram is right that different people focus on different elements of each case to make opinions about who they think is in the right. And public opinion matters to State Farm, to the OP’s school, and even to the public school (though there it should matter less that adherence to the law). But none of that has anything to do with the rights at issue.Report
If you want a better analogy to Schneider, here you go:
Company hires artist
Artist’s work triggers public outrage
Company stops working with artist
It’s different in that outrage is directed at on-the-job performance, but similar in that we are dealing with consequences for speech imposed on individuals by private companies.Report
“Company hires artist
Artist’s work triggers public outrage”
Is that the case? That’s an honest question, I sincerely don’t know and am curious. I had never heard any of this prior to today, and I still haven’t seen anything about it in any of the news blogs I read, on Facebook, on my twitter feed, etc.
I think because of this I had assumed that State Farm terminated the contract with the hope that no one might be outraged in the future, or that they used a conduct clause to get out of a contract that wasn’t producing the effect on sales predicted, or some such thing.
Was there really public outrage?Report
To be clear, that was a description of the Marvel link (which certainly did, at least on my set of news blogs). I hadn’t heard about the Schneider thing either, but the article here made it sound like the decision was in response to at least some push-back.Report
There was some pushback to Schnieder. I saw it on my twitter feed before the firing.
From what I know about it, I view the Marvel situation in an entirely different context than any of the other situations presented here (apart from the legality). We’re talking about someone being removed from the project in very close proximity to what they were objecting to. A closer situation, also involving comics, was Orson Scott Card and that Superman comic. That was sketchier (though entirely legal – legal isn’t the point).Report
I’m not sure of the timelines of the Schneider case – when did the anti-vax business starg on his part, and when did it become known to State Farm?
Marvel hired Manara because he’s known through his work as a porn artist. There was no surprise there. Marvel let Manara go because they got called out for the cover he drew for them, and for which they signed off on all the drafts, not because of Manara’s other work.Report
My understanding is that he’s been anti-vax since well before State Farm signed him.
I doubt State Farm knew (or cared) about his views prior to a stink being raised about it.Report
Well, to attend the private school, you (or your parents, acting as your legal guardians) sign a contract which likely includes clauses about behaviors off campus. Going back to Vanessa Williams, I would call these moral turpitude clauses, and I’m quite sure that NFL players have turpitude clauses in their contracts, too. When my husband taught at the local private school, the teachers there lived in some fear of a drunk-driving charge, they knew they could loose their jobs over it, reflecting the contractual standards of behavior students encounter. Public-school teachers and students seem to have a clearer line between their school/non-school lives.
The place where I get really concerned here is when we see employers firing people for social media posts, etc., the photo of the teacher with a drink in their hand or an off-hand comment about how difficult students were that day, or whatever. But behaviors agreed to, and then violated, in contract? I don’t see that we’ve got anything to do with it, other then making sure that the student/teacher/football player actually understands what those clauses in their contracts potentially mean.
So my quick answer here is that we, meaning you and me, draw the lines as they are reflected by public schools. Beyond that there are higher standards and non-organizational standards (and also a contractual surrendering of some rights, btw) that are laid out in the contract between the school and the student/employee. Freedom to enter into contracts, however, typically favors the party offering the contract, particularly if their is some demand for a limited number of such contracts, as we see in teaching jobs, some school slots, or the NFL; you, as an individual may not have a whole lot of room to negotiate a different contract with different behavioral standards.Report
I’m not sure I see the comparison between the two news stories as being as similar as you do, Mike. And judging by the quote from McKenna< I'm not sure how closely she follows the NFL. The NFL came down on Rice recently for the exact same reason they let him off lightly for breaking the player code of conduct initially: It was a business decision. It was not ever a statement of moral outrage on their part, it was a signaling to the 45% of their costumers that are not male that it takes it's code regarding domestic violence as seriously as it does other crimes that are in their CoC. As I said, I am doubtful McKenna follows the NFL regularly, because in fact the NFL cares very much about what their employees do off the field. If McKenna did, she would know that one of the reasons that a lot of NFL fans, bloggers and talk radio people were so gobsmacked about the initial Rice decision is that it at the same time they suspended Josh Gordon for an entire year once it was discovered that he had smoked pot on his own time. Most people I know that follow the NFL all agree that more than anything it was the juxtaposition of those two rulings by Godell that made everything blowup on his face. You make the drunk driving comparison for yourself, but there's a significant difference: Were you to get pulled over and be given a DUI, your employer would not have to face the possibility of losing a significant amount of their revenue base for continuing to employ you. If you somehow were a risk to losing that money, they would terminate you. If you could still be a profitable employee and they risked nothing by keeping you on, they would most likely keep you on. Schools are different, in that they are required to teach all people of a certain agar in the community (save those who go to private schools). They have no reason to suspend of expel kids for things not done on school grounds. This obviously dodges the questions of personal accountability you are asking, but the Rice case is actually far similar than we are making out to be. Any employee that loses far more money for their employer than he or she creates will be out of a job, no matter the job.
Very true. One of my previous employers was a company that made automotive safety equipment (seat belts, airbags, etc.) Part of their public relations was a strong emphasis on drunk-driving reduction, including involvement with organizations like MADD. Although it was an at-will relationship like Burt describes, and we could be terminated for any non-protected reason, the employee handbook made explicit that any employee would be fired for a DUI conviction, on or off the clock.
This isn’t necessarily the route I would take, were I to suddenly inherit the business (I’m a big believer in second chances, although probably not third in cases like this), I think it’s a perfectly reasonable stance for the company to take. And although it was made explicit, I would still support the decision if it wasn’t. (Also, despite the official company line, we all understood that at its heart the policy was a business decision, not a moral one.)Report
Schools have taken a very strict line between things that happen during school hours and on school grounds versus everything else. Their responsibilities end when the kids take a step outside the school building. Even school buses are grey areas.
I’ve seen stories of an awful lot of public schools punishing kids for off-campus behavior. As what Zic says above, I can see private schools taking a hard line against off campus behavior, but public schools… not so much.Report
I wrote my upper-level research paper for law school on cyberbullying, due process, and public schools.
Public school punishment for off-campus acts is all over the map. Generally courts seem more strict when off-campus activity is against teachers than fellow students.Report
1. There are due process issues when schools punish for off-campus behavior. This is what makes cyberbullying such a hard issue. Yes kids can do lots of horrible things to each other during non school time and not using school property.
2. The general standard is that a school is allowed to punish when the activity places a “substantial disruption” upon school activities. Basically does the victimized student or do the activities of the students being punished make it hard to conduct day to day stuff happening at school or is it hard for the victim to get a good education. The cases for this kind of stuff are all over the map in terms of how strict or not strict a court is willing to take substantial disruption.
3. There are very good reasons to want schools to have a limited reach out of their borders. You can find situations where a school would punish where a parent would not and perhaps the parent is justified and right in not punishing. Why should school officials get to intervene in parenting during off hours? Do we want school districts to be able to punish kids for putting out a literature magazine that is more risqué than the one on campus?Report
One I can think of right off the top of my head is harassment. Racial, sexual, whatever. Belinda the Bully picks on her classmate Velma the Victim off campus, using a variety of racial slurs and religious epithets. This naturally causes Velma to be deeply uncomfortable when around Belinda. Even if Belinda complies with all rules and reasonable standards of behavior while on campus, if the harassment is severe and pervasive enough, just being in physical proximity to Belinda is going to have a deleterious effect on Velma. So the school needs to dig in to the communication between Belinda and Velma that happened off campus in order to understand why Velma freaks out whenever she’s asked to be in the same classroom as Belinda; and if necessary regulate that conduct so that Velma can get an education.
That would seem to extend to employment, too; if Belinda and Velma are co-workers at PassiveCo, Inc., and Belinda complies with reasonable workplace behavior rules while at work, but off duty and away from the workplace she conducts a campaign of harassment and stalking and other really awful behavior, PassiveCo seems to have a legitimate interest in inquiring about the off-work activity that is making Velma freak out every time she is asked to work on a project with Belinda.
In the other thread, it was mentioned that in theory, an employer doesn’t have good cause to discipline an employee for legal off-work activity, particularly privileged sorts of off-work activity like political advocacy. But what if that political advocacy is for a really awful cause — say, urging people to vote for the American White Supremacy Party? An employer would likely face embarrassment at best from such a thing, and therefore seems to have a legitimate interest in the employee’s off-duty activities. But where’s the line between the employee advocating for the American White Supremacy Party, which we want to give the employer latitude to control, and the Republican or the Democratic parties, which are pretty mainstream and which we want to tell the employer is not really the employer’s legitimate concern? It’s not going to be possible to draw a principled, bright line, one that is predictable and around which other rules might be drawn.
The advice I give my clients is, “Do you really want to stand in front of a jury and defend this?” The practical result is to make the employer find some linkage between the employee’s behavior and an aspect of the job that they can point to in an objective fashion. If that constitutes “for cause” as a de facto matter, the reality of it is that I can live with that even as employer’s counsel and even insisting that in theory the employer has the ability to discipline or otherwise terminate for no cause whatsoever. “We could have fired you for no cause at all, but look, here’s the cause we had in your case.” That’s the place I want to be.Report
@burt-likko For the last couple of weeks, I’ve been making phone calls for the local dems; one with a man who was terrified that if he answered my questions, his Republican bosses might find out, and he’d be fired. He repeated some of the things that were said about Dems and liberals at his job, he seemed to feel it was a really hostile place for a liberal to work.
I wonder if, based on your comment, this might be a similar problem? I was pretty stunned at the vehemence of it all, though not particularly surprised; but he did not have any sense of each-to-his-own opinion at his job; and perceived public participation as potential to be mistreated at work. Since he’d moved a long way to take this job, he did not feel he had other alternatives open to him.Report
Would you want to be the lawyer who had to explain to a jury in a wrongful termination lawsuit, “we fired this guy because he was a Democrat?” Chances are, in your state, that is a legitimate grounds for termination. (Maine, right? If so, then I know that is the case.) But chances are, almost everybody thinks the law is to the contrary.
And it’s entirely possible that, even after being educated otherwise by a judge, they will think that is the way the law ought to be. The jury will then find whatever pretext the plaintiffs lawyer can offer up, and base its findings of fact on the result it wants to reach.Report
“Chances are, in your state, that is a legitimate grounds for termination.”
really? i feel like there’s a context here i’m missing – like he’s a fundraiser for a conservative org but gives money to liberal orgs, or some variation on that?Report
No, @dhex , i’m referring to the at-will work doctrine, which is the rule in a large majority of states, and in a large majority of employment situations. An employee and an employee or are engaged in an at-will relationship, or if you prefer, an at-will contract. The moment one party is no longer willing to be a part of the relationship, the relationship ends. There does not have to be a reason; or, maybe there is a reason, as long as it is not a reason prohibited by law.
So here’s a quiz: in an at-will employment situation, which of the following constitute wrongful grounds to terminate an employee’s job? (“Wrongful” meaning “subject to civil liability in a lawsuit afterwards”.)
A. Employee is a high school graduate.
B. Employee is not a high school graduate.
C. Employee is a Democrat.
D. Employee’s wife is a Democrat.
E. Employee does not know how to play the piano.
F. Employee wore a purple shirt on casual Friday.
G. Employee failed to report to work with required amount (19+ units) of flair on her suspenders.
H. Employee has never seen the movie Office Space
I. Supervisor’s spouse said something unkind to supervisor at breakfast that morning.
J. I dunno why I fired him. Just felt like it.
Legally, these are all perfectly valid reasons to terminate someone’s employment, at least according to the black letter of the law.Report
A freaky fractured-mirror reflection of Eich, no? Probably a lot more common — driven out by the brass then publicly tried.
It’s no wonder people feel it should be illegal; it feels like a free speech violation — that you can be fired for your political views, if your employer could justify that firing, and convince a jury of that.
It’s pretty easy to forget about the jury, these days, so adept at picking the facts that reinforce their pre-existing biases. I’m under the impression that most cases like this get settled out of court, is this mistaken?Report
That’s correct, @zic ; although you Should bear in mind that a decision to settle a lawsuit is very frequently a business decision rather than an admission of culpability. The transaction cost of litigation is high: not just in attorneys fees (which are very high), but also in the time that employees, particularly high level employees, must devote to dealing with the lawsuit as opposed to running the affairs of the business.
There is also the issue of risk. Rarely is any case a slam dunk for either side. And the risk of loss to a defendant can be in the high 5 to 6 figure range, given The stakes for even a mid level employee. In my experience, risk is a principal driver.Report
@burt-likko
That kind of harassment is also protected against in the Civil Rights Act of 1964 so it might not be the best example in the world.
@zic
There are only a handful of states that have what are called a lifestyle protection act which prohibits termination based on lawful off hours activity.
Other states have potential workarounds. California protects against being discriminated against for gender non-conformity. I don’t know of any cases but in theory this could protect against a heterosexual guy who prefers talking about Renaissance Art or Knitting over fantasy football. I think I could at least make a plausible argument that this falls under the idea of gender non-conformity. The Supreme Court of the United States said that the gender discrimination sections of the Civil Rights Act of 1964 also protects against some gender non-conformity (this was used as an early way to get gay people some limited employment protection.)Report
thanks Burt.Report
I would absolutely not be okay with public schools punishing non-violent off-campus* behavior with suspension, expulsion, or other punishments that have a significant effect on a student’s ability to academically participate in school.
And frankly, I’d expect the same of a private school. I don’t think should be against the rules for a private school to levy such punishments, but I would read their willingness to do so as the abandonment of their purpose as educational institutions. A much more appropriate action is to simply not allow the student to return to the school the following year.
*I do disagree pretty strongly with where McKenna draws the line of what counts as “off campus”, though. I would include behavior that takes place at off-campus school sponsored activities and on school busses. as long as it’s clearly established and articulated by the school, I think it would also be appropriate to include other circumstances where children are made to interact with eachother because of school-related logistics and there are no parents present, such as waiting at school bus stops, walking to and from school, hanging out in the park across the street during lunch where students are allowed to walk off-campus, etc. But the behavior described here takes place in a private home–That’s well beyond any reasonable boundary that the school might impose.Report
I would absolutely not be okay with public schools punishing non-violent off-campus* behavior
Does that mean you’d be OK with them punishing violent off-campus behavior? Keep in mind that “non-violent” doesn’t exactly mean victimless. A DWI is non-violent. Bullying fellow students off campus could be non-violent. Etc.Report
I think if a school has just cause to believe, given a student’s off-campus behavior, that the student is likely to physically or sexually assault another student, the the duty of the school to keep that student away from peers trumps the duty to provide that student with meaningful education in ways that aren’t true for other forms of misbehavior.Report
I’m going to give a lawyer’s answer and say that it depends on the situation in question. If a person’s outside activities raises doubt about their ability to perform their job or could raise a negative inference on the organization in question than I’d say an organization has the right to be concerned about this. For instance if a pre-school teacher has a double life as a burlesque dancer, it could draw a negative influence on the pre-school even though it might not impinge on her ability as a teacher it could lead to parents making a bad inference about the pre-school. However, if the above conditions are not met than it doesn’t matter.Report
Do we agree that there’s a right to privacy or is that very question laughable on its face?
(Or is this one of those things where you and me and him might agree that there’s a right to privacy but the Supreme Court only found that such a thing applies to emanations from penumbrae?)Report
I think most people think there is a right to privacy in the Constitution that is at least very strongly implied. Some states like California have explicit rights to privacy in their constitution. The Right to Privacy has been argued seriously since the late 1800s.
Some conservatives like Heather MacDonald will argue with extreme fury and passion that there is no such thing as a right to privacy. This mainly has to deal with rage over Griswold and subsequent cases.Report
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Report
“Some conservatives like Heather MacDonald will argue with extreme fury and passion that there is no such thing as a right to privacy. ”
I’m sure Brandon Eich can tell us all about how “there’s no right to privacy” is a bipartisan notion.Report
And yet many of those same conservatives rail regularly about government being overly intrusive in the lives of Americans, taking freedom at every turn.Report
I used to argue against Conservatives that they should support a right to privacy. They were opposed, mostly, because they feared that a right to privacy would protect abortion.
They were right, of course. It does.Report