By Mark Carey
FEEDBACK RESPONSES TO CANCEL CULTURE IS ILLEGAL AT WORK
When I decided to write the first article (Cancel Culture is Illegal At Work!) I knowingly anticipated immediate judgment and backlash. In essence, I knew I was going to be canceled. That was the point. I was inviting debate about the entitlement mentality “ to cancel others at will. What I knew to be true was the lack of legal substance to the argument in favor of cancel culture being used and defended at work. How could there be. In order for any legitimate social/political argument to arise to future public policy and statutory initiation, there would need to be a foundation based on prior legal precedent. Without legal precedent, cancel culture supporters are just acting arbitrarily based on social passions. Passions and emotions are high certainly. It is not my intention to criticize cancel culture, but to show the negative consequences of unfettered and arbitrary bias and the impact legally. Yes, it is still illegal to cancel at work and I invite any argument to support why it is not. I am listening but are you listening to my question here? To ignore me is to cancel me. To accept opposing viewpoints is only wise, as it will convince opponents there may be a sliver of justification for cancel culture. All of our American legal developments that address social concerns always follow this same process “ seeking a foothold in the rule of law, as discussed below.
ANGRY FEEDBACK WITHOUT LEGAL FOUNDATION
In response to my first article I received several angry email responses informing I was wrong about what is cancel culture and accused me of perpetuating whiteness. But none of the objections to the article provided a legal basis to support the continued use and protection of cancel culture at work. This is my point. Proponents of cancel culture are not even understanding the legal issues or just ignore them entirely in order to perpetuate their narrative. Social movements must have a footing in the rule of law, otherwise they do not and will not survive. Advocates of cancel culture never cite any legal basis to support its existence but for the fact it just IS and we should all heed to it.
THE FUTURE OF CANCEL CULTURE AT WORK
The future of cancel culture at work will definitely result in lawsuits against individuals based on reverse discrimination. Now currently, only a select number of federal statutes provide individual liability, particularly 42 USC 1981. Section 1981, as it is commonly referred to, is a post-civil war reconstruction statute to protect and enfranchise early African Americans to own land of their own and to contract for business purposes, both of which did not previously exist. Today, employment lawyers, including myself, use Section 1981 to combat race discrimination in the workplace of any kind, whether Brown, Black, White, Hispanic, LatinX, Asian. Congress and the courts have never specified which race was protected by the statute; actually the word race was never mentioned in the statutory wording. Although it did set the standard to measure against, as is enjoyed by white citizens. 42 USC Section 1981 states specifically,
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) For purposes of this section, the term make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
INDIVIDUAL LIABILITY FOR EMPLOYEES WHO PURSUE CANCEL CULTURE AT WORK
Most people who pursue cancel culture at work do not realize they can be sued individually for race discrimination under Section 1981. This is commonly referred to as reverse race discrimination, but that phrase too is also not mentioned in the statutory language. To be clear, reverse race discrimination can apply to any race.
Courts are responsible for this development and the use of Section 1981 to protect all races against invidious race discrimination. Cancel culture IS invidious race discrimination. There is no legal argument to be used to say that it is not. In fact, the point of this article is to demonstrate the utter lack of foundational legal support behind cancel culture at work. After all, we derive our individual rights, liberties and protections from the rule of law. In order for cancel culture to rise to its assumed zenith, it must first ground itself in the rule of law. What do I mean by this? Let’s assume a cancel culture event occurred at work and the employee perpetrating the canceling seeks to vindicate his legal right, not social right, to cancel another employee. The employee must assert legal standing to do so. Standing is a legal term that defines the right or opportunity to contest a legal interest. Where is the standing to cancel another employee at work? I have yet to hear any cogent argument to support cancel culture standing in the legal, not social, context. There are none. Cancel culture at work is illegal. I predict cancel culture will not survive because it is legally flawed.
If you would like more information about this article or to speak with one of our employment attorneys about your employment discrimination case, please contact Carey & Associates P.C.