50 International The EconomistFebruary 29th 2020
2 fused to take customers’ cash because do-
ing so was an essential part of the job.
Many Western countries also ban dis-
crimination on the basis of “belief”, though
none defines the term clearly. Increasingly,
non-religious workers want similar pro-
tections to those afforded to religious
groups, says Peter Daly, an employment
lawyer involved in the cases of both Ms For-
stater and Mr Casamitjana. British courts
are leading in this area.
The bar for beliefs to qualify for protec-
tion was lowered in 2006 when Britain re-
moved the requirement for such beliefs to
be “similar” to religious ones. Then, in
2009, a tribunal ruled that Tim Nicholson’s
belief in man-made climate change was
akin to a religious conviction and should
enjoy the same protections.
Mr Nicholson had been head of sustain-
ability at Grainger plc, a property-invest-
ment firm, until he was made redundant.
Grainger claimed this was a result of
changing staffing needs. Mr Nicholson ar-
gued that his redundancy was the result of
his environmental beliefs: he often urged
executives to improve their green creden-
tials. The firm’s lawyer claimed that Mr
Nicholson’s views were opinions, as op-
posed to beliefs that enjoyed special pro-
tections. But the fact that his daily life was
guided by his convictions, influencing
how he travelled and lived, helped con-
vince a judge that his was a belief worthy of
protection, a decision that has been influ-
ential in much of Europe.
The ruling set five criteria for a protect-
ed belief. It must be genuinely held; be
more than an opinion or viewpoint based
on the present state of information avail-
able; be a weighty and substantial part of
life; attain a certain level of cogency, ser-
iousness, cohesion and importance; and
be worthy of respect in a democratic soci-
ety and compatible with human dignity
and the rights of others. The last criterion
was set explicitly narrowly to rule out par-
ticular noxious beliefs. White Supremacy
has failed on that test.
Over the past decade European tribu-
nals have concluded that various non-reli-
gious beliefs clear the bar. Anthroposophy,
opposition to hunting, Darwinism, faith in
the “higher purpose of public broadcast
journalism” and ethical veganism have
been ruled in. Being sympathetic to China,
disliking asylum-seekers and the convic-
tion that 9/11 and 7/7 were “false flag” oper-
ations have been ruled out. On vegetarian-
ism and Marxism countries disagree.
It is illegal in most European countries,
particularly former communist ones, and
some American states, to fire someone for
their political beliefs. Several Silicon Valley
employees have used such laws in Califor-
nia to argue that they were fired for being
conservatives. But most Americans enjoy
no protection of their political beliefs atwork. In 2004 a woman in Alabama was le-
gally fired from a housing-insulation com-
pany for having a John Kerry bumper stick-
er on her car. In December a man playing
Father Christmas at a mall in Georgia was
replaced after photos emerged online of
him wearing a pro-President Trump base-
ball cap while on duty (he claims it was a
joke). Christopher Olmsted, an employ-
ment lawyer in California, expects political
disputes on the workfloor to heat up as
elections approach later this year.
Employers say they need to restrict the
expression of certain views in order to
create inclusive workplaces. Consider the
sacking of James Damore, a Google engi-
neer, in 2017 after he penned the “Google
Memo”, which argued that women were
biologically less suited to tech jobs. Diver-
sity officers at many firms protested, argu-
ing that firing someone with views that are
different from the norm was the opposite
of inclusivity. Human-resources and em-
ployment lawyers defended the dismissal
as the only way to protect employees from
hostility and the company from litiga-
tion—and bad press.
But firms are increasingly concerned
about what their employees say and write
outside the office. In 2018 a film director
was fired by Disney for tweets in which he
joked about rape, sent years before the
company hired him. In 2019 a “greeter” for
asda, a supermarket, was dismissed for Is-
lamophobia after sharing a Billy Connolly
video on Facebook (a comedian whose
work is sold by asda). Both have since been
reinstated, but only after hassle, and “all
because their employers had a panic attack
over what was happening on social media,”
says Jodie Ginsberg, the outgoing ceoof In-
dex on Censorship, a charity. Pascal Besse-
link, a Dutch employment lawyer, esti-
mates that about one in ten on-the-spot
firings in the Netherlands are now related
to social media. Few have garnered much
attention because companies tend to settledisputes quietly. Even when firms are in
the right they prefer to stay out of the lime-
light, so will buy off fired employees in ex-
change for their silence.
The courts are puzzling their way
through such cases. Last August the Austra-
lian High Court upheld a decision by the
Department of Immigration to fire a public
servant who had sent thousands of anony-
mous tweets critical of her employer. More
complex are firings over posts that are un-
related to work but which are deemed to
bring an employer into disrepute.
Employee activism can be particularly
tricky. Amazon employees recently
claimed to have been threatened with dis-
missal for criticising the firm’s climate
policies to journalists. Google has been ac-
cused of trying to silence dissenting voices,
including those that criticised the firm’s
response to sexual harassment and its se-
cretive work in China. The firm denies any
claims of retaliation, which would be un-
lawful, but does not dispute that it has re-
duced the frequency and changed the
scope of its “Thank God It’s Friday” town
halls, once a celebration of free speech.Loose lips bring pink slips
To forestall conflicts, firms are moving to
spell out their expectations in codes of
conduct and social-media policies. The
level of detail varies. Intel simply asks em-
ployees to “use common sense”. General
Motors’ 12-page social-media policy in-
cludes a reminder that “your online com-
munications will not be excused merely
because they occurred outside of work
hours or off gmpremises.” There are few
limits to what an employer can demand in
its terms of employment, says James Lad-
die, a barrister. But social-media use is now
so widespread that extreme restrictions,
such as blanket bans on Twitter, are no lon-
ger realistic. “It’s yet to be tested what view
a tribunal would take on someone fired for
refusing to abide by such a ban. They may
well say ‘we don’t care what your t&cre-
stricts’, it’s not fair to dismiss someone for
speaking their mind.”
In the midst of all these prescriptions,
Pam Jeffords of pwc wonders whether
companies might more usefully replace
demands for “respect” with requests for
“civility” in employment conditions. “It’s
not realistic to demand I respect someone
who believes women don’t have a right to
drive,” she says, “but it’s reasonable to ask
me to be civil.”
The workplace is where most discrimi-
nation disputes emerge. It is where people
are most likely to spend time with those
with whom they fundamentally disagree.
Most employers simply want a pragmatic
approach to regulating speech at work that
allows people to get on with their jobs
while avoiding both the courts and the me-
dia. That is easier said than done. 7