“Cancel Culture” and the Workplace: Weighing freedom of expression against the employer’s reputational interest

“Cancel culture,” involving a swift public backlash over a person’s offensive statements or actions, follows a predictable course: A person will say or do something offensive, often accompanied by a video broadcast on social media. Social media users will then identify the offender and their place of work and bombard the employer with threats to boycott its products or services unless the offending employee is fired. In many high-profile cases — such as that of Amy Cooper, who lost her job at an investment firm after she was filmed calling police on a Black man who asked her to leash her dog in Central Park — the employer has responded by terminating the employee’s employment and often making a public statement indicating that its now-former employee’s views do not reflect the company’s values. Should human resources decisions be influenced by angry Twitter mobs? Can employers afford to ignore their workers’ off-duty actions? What if the employee’s conduct raises questions about their behaviour in the workplace?

In this audio conference, leading experts will examine the workplace implications of “cancel culture,” discussing issues such as the following:

• What should employers and unions do if they become aware of information about an employee’s off-duty conduct or personal views that calls into question the employee’s behaviour in the workplace? For instance, if managers are caught on video making racist or sexist remarks, should there be an investigation into whether they mistreated people in the workplace or whether their decisions were tainted by bias?
• Are employers able to discipline employees for private, off-duty statements that come to their attention, or are they limited to disciplining employees for public statements?
• How close a connection is required between an employee’s off-duty conduct and an employer’s legitimate interests in order to establish just cause for discipline? Do arbitrators require objective proof of harm to the employer’s reputation or to the orderly functioning of the workplace? Does it matter whether the employee intended the conduct in question to be private or public?
• Can employees be disciplined or terminated with just cause for voicing their opinions? Does the answer vary depending on whether the statements were made on or off duty?
• Can employees defend themselves against workplace consequences by arguing that they have a right to freedom of thought, belief, opinion, and expression under section 2(b) of the Charter? Under what circumstances does this right apply?
• Will an employer open itself to a damage award if it releases a public statement condemning the employee’s behaviour and indicating that the person no longer works for the organization?
• What steps should unions and employers take if other workers refuse to work with a “cancelled” employee?