Noah: Anderson and Cowen on Justified Termination

I found Anderson’s Private Government very powerful in communicating the modern-day abuses that come from arbitrary and unaccountable government in the workplace. I was highly persuaded by her account, but an argument from Cowen’s rebuttal gave me significant pause.

Cowen claims that “at the margins, the employer discretion leads to abuses, some of which are documented in Anderson’s piece. But those abuses are relatively few in number, and the gains for workers and customers from the firing discretion [of employers]—not just the gains for bosses—outweigh those costs” (112-113). 

Perhaps the reason this argument really resonated with me was because I had lived it. Working as a crew member at Chipotle last summer, a colleague of mine would always take extended time to perform menial tasks during rush hour. He’d spend 45 minutes looking for extra cups in the storage room and consistently take 20 minute bathroom breaks. We were understaffed, which simultaneously gave him more power as an employee but made his laziness even more frustrating as someone picking up the slack. After he finally got fired, many in the crew (including myself) rejoiced. 

The nature of this example shows the difficulty of establishing a contract with the proper balance of workers’ rights and employee discretion. Granting bathroom breaks to employees should be a fundamental guarantee for any job… but at what point does the usage (and abuse) of that right become too far to warrant a justifiable termination?

Anderson acknowledges this difficult balance with respect to free speech. She states that “a workers bill or rights could be strengthened by the addition of more robust protections of worker’s freedom to engage in off-duty activities, such as exercising their political rights, free speech, and sexual choices.” But there is a footnote next to free speech, which reads “There may be legitimate limits to [free speech] for higher-ranked managers and press agents who are regarded as official spokespersons for their firms” (163).

For Anderson, speech may legitimately be cause for termination if the employees are official spokespersons for their company. For instance, Fox News could fire Tucker Carlson if he started tweeting in support of the BLM movement or trans rights, because he acts an an official spokesperson for Fox, and his speech would turn viewers aways and hurts profits. But if the Fox News camera worker were to post #BIDEN2024 on her instagram with 14 followers, her lower status would make termination illegitimate. 

This distinction makes sense, but I think it leaves out cases where termination is justified for non-spokespersons. 

In middle school, one of my teachers had a blog where he posted his thoughts on American politics and culture. Many of the posts had, to put it lightly, islamophobic, antisemitic, anti-lgbtq undertones. Some of it, in hindsight, seemed to have been taken straight from a Tucker Carlson segment. Yet, none of his teaching was influenced by his politics. He taught a technology course where we built video games from scratch and most of his students liked him as a teacher. I just remember happily playing Super Mario during most of the trimester.

Ultimately, the school district offered a settlement for his resignation. I would argue they had a right to fire him on account of his private free speech, not because he was an official spokesperson for the district, but because his speech made most other teachers uncomfortable in their professional environment. Regardless of his job performance, the majority of teachers at my middle school—many of whom had identities that were discriminated against in the blog posts—felt unsafe working alongside an individual with prejudiced views. To Cowen’s point, protecting these workers is enough to justify terminating individuals on account of their private speech.

Where Cowen’s perspective fails is his inability to account for worker input as an addition to employer discretion in adjudicating employee termination. Cowen claims that employer discretion is necessary because “employee transgressions and misbehaviors cannot be specified in easily contactable or legally enforceable ways” (112). But contracts and the law are not the only tools that can assess terminable misbehaviors. Workers can (and should) help decide wether a colleague’s actions are grounds for termination considering the context of a situation.

In both my Chipotle and Middle school scenarios, workers played a key role in communicating with upper management and terminating individuals that burdened their colleagues for abusing their rights within a workplace context. Just because the complexities of worker misbehavior cannot be coherently mapped out in law does not mean we should hand employers unlimited discretion. Employee input in the decision to fire workers would help curtail the extensive employer abuses which Anderson describes, and also avoid the seemingly impossible task of creating a coherent account of misbehavior in law or contract.

In summary, I think Anderson needs to acknowledge protection for other workers as another element which justifiably limits fundamental worker rights like free speech and a right to use the bathroom. At the same time, I also think Cowen needs to consider that granting employee voice in firing discretion would not only allow for context-sensitive decisions in a way that the law or contract cannot, but also help set the limits of the abusive employer power which Anderson outlines.