I. Background and Shortcomings of Title VII
The existence of cancel culture is at least partially due to institutional failures to adequately address discrimination in the workplace. Therefore, before discussing the broader implications of cancel culture in the workplace, it is essential to discuss what potentially sparked the use of such an alternative remedy.
Prior to the passage of the 1964 Civil Rights Act, employees had limited legal options when it came to workplace discrimination. The passage of Title VII as part of the 1964 Civil Rights Act addressed this gap in the law by prohibiting discrimination based on race, color, religion, sex, and national origin. Since then, Title VII has become the primary legal remedy for workers who allege they have experienced workplace discrimination because they are a member of a protected class. While Title VII has resulted in many positive outcomes for employees, many scholars agree that employment litigation rarely provides an effective mechanism for meaningful remedy. The process of bringing a successful discrimination claim is notoriously challenging at every stage. Indeed, the majority of Title VII plaintiffs often get nothing or a small settlement at best. Even in cases where plaintiffs do win, favorable decisions are often overturned through the appeals process.
Further, litigating discrimination claims is an exhausting process. It requires the employee to invest time, energy, and money in a lengthy legal battle, all while putting her career on hold with no guarantee of success. Even employees who have succeeded in winning discrimination cases have cautioned others against doing the same. Beyond the exhausting process, a negative stigma often attaches to those who file discrimination lawsuits. Studies show that this negative stigma exists even in cases where people know the complaint is valid. Rachel Denhollander, for example, a survivor of disgraced Olympic coach Larry Nassar, was called an “ambulance chaser” looking for a “payday” after filing a lawsuit against Nassar. Denhollander’s experience is a testament to the notion that individuals who seek legal redress are often perceived as opportunistic and insincere. Therefore, it is unsurprising Title VII is an unattractive option for employees.
Beyond the difficulties associated with the judicial process itself, employees face additional hurdles due to the prevalence of mandatory arbitration agreements. Indeed, agreeing to arbitration is often a condition of employment and requires that all discrimination claims are resolved through arbitration rather than litigation. Although the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFASASHA) now bars enforcement of pre-dispute mandatory arbitration agreements for cases that include sexual harassment claims, that Act still exhibits several shortcomings. One notable shortcoming is its limited scope, which permits enforcement of mandatory agreements for cases involving discrimination and harassment on other grounds, such as race. This limitation is significant because a recent study found that arbitration provisions are particularly pervasive in industries with a disproportionate representation of African American workers. Furthermore, the American Association for Justice has reported that the majority of arbitrators are male and overwhelmingly white. This lack of representation poses another disadvantage for minority employees in an arbitral forum.
Moreover, studies suggest that workers generally experience worse outcomes in arbitration than in the courtroom. Additionally, courts rarely review arbitration decisions. Unless the court finds that the arbitrator “deliberately disregarded the law,” courts will generally not intervene. As a result, unfair arbitration decisions often stand, even if the arbitrator lacked knowledge of the law or applied it unfairly. Consequently, workers subject to mandatory arbitration agreements may be deprived of a more favorable forum with fewer avenues for appeal.
Finally, confidentiality and non-disclosure provisions (NDAs) often accompany arbitration agreements. The inclusion of these provisions also hinders the effectiveness of Title VII. Indeed, confidentiality agreements often protect both the employer and the individual harasser from public exposure. Unsurprisingly, discrimination lawsuits are a public relations nightmare. Naturally, the risk of bad publicity encourages employers to take measures to prevent discrimination from occurring in the first place. In fact, reputational harm is one of the most potent deterrents to illegal workplace discrimination. However, the popularity of mandatory arbitration and confidentiality agreements reduces these incentives, undercutting Title VII. Therefore, given Title VII’s numerous deficiencies, it is no surprise employees eventually turned to alternatives, such as canceling, to remedy workplace discrimination.
II. Cancelation as a Remedy for Workplace Discrimination
The potential of “canceling” to remedy workplace discrimination was first realized in 2017. It began after actress Alyssa Milano encouraged Twitter users to respond “me too” if they have experienced sexual harassment or assault. Within days, nearly 1.7 million women responded to Milano’s tweet sharing their own experiences and stories. This social media uprising became known as the #MeToo movement, directly referencing Milano’s tweet that sparked the movement’s viral spread. In response to the overwhelming amount of #MeToo stories centering on workplace sexual harassment, the Time’s Up Legal Defense Fund (“#Timesup”) was created. The fund aimed to empower workers by providing legal resources and amplifying the voices of survivors of sexual harassment.
Although the #MeToo movement is primarily known for bringing down Hollywood producer Harvey Weinstein, it accomplished much more than that. #MeToo and its counterpart, #Timesup, not only vindicated hundreds of workplace sexual harassment victims but also served as the catalyst for systemwide change. The movement prompted several large employers to scrap outdated policies responsible for years of sexual misconduct going unchecked. Furthermore, several states enacted laws prohibiting non-disclosure agreements in employment contracts—the same kind of agreements that Harvey Weinstein required his victims to sign—and federal legislation prohibits enforcement of those agreements relating to sexual assault and sexual harassment disputes.
Certainly, the impact of the #MeToo movement cannot be overstated. Within a matter of weeks, the movement brought about unprecedented change, addressing long-standing issues of workplace harassment previously overlooked for decades. What made #MeToo particularly notable was that it showcased how workers could use technology to organize and collectively fight for change, even in the absence of union protection. Following the movement’s peak, employees began using social media and cancel culture to draw attention to other instances of workplace discrimination, such as racial inequality.
III. From Cancelation to Cancel Culture
As evidenced by the #MeToo movement, it is undeniable that canceling has given employees a unique and powerful tool to hold employers accountable. When done in good faith, canceling serves as a means to elevate employee voices and improve workplace conditions. For individual victims of workplace discrimination, canceling can offer retribution and vindication, all facilitated through the simplicity of social media. While it may not provide monetary compensation, canceling enables victims to expose injustices and bring attention to their experiences on a broader scale. By shedding light on problematic practices, the threat of canceling encourages employers to take employee concerns seriously and take action to rectify wrongdoing.
However, as cancel culture has grown more pervasive and expansive, it has taken a somewhat darker turn. Its reach has extended beyond those in positions of power and has started to primarily target employees instead of employers. This new wave of canceling follows a pattern similar to Cafferty’s story, detailed in the introduction of this article. First, a social media user will post “evidence” of the offender’s offensive behavior—usually a screenshot, photo, or video to a social media platform. This behavior is then framed as problematic or otherwise objectionable. That user will then tag the offender’s employer on a social media platform and encourage others to do the same. The result is dozens, if not hundreds, of angry social media users demanding that the offender’s employer terminate the offender immediately.
While comprehensive data detailing cancel culture’s impact on the workplace is lacking, valuable insights can be gleaned from select studies and surveys. Notably, a 2022 research report by SafeHome.org presents a significant finding: twenty-one percent of Americans have fallen victim to the “malicious publication” of their personal information online. The publication is “malicious” because it is accompanied by damaging accusations. Of these cases, a staggering twenty-seven percent reported suffering job loss. A separate national survey conducted by CareerBuilder indicated that thirty-four percent of employers reported encountering online content that led to disciplinary action or the termination of an employee. Another study found that one in three workers knew someone whose employer had terminated an employee based on social media activity.
Notably, this new wave of cancel culture differs significantly from movements like #MeToo in several respects. For instance, in contrast to #MeToo, where victims of workplace discrimination often play a central role in speaking out, strangers increasingly initiate cancelations. As a result, these outsiders often lack the necessary context to fully understand the situation, yet they wield significant power in amplifying calls for punishment.
Moreover, the offenses that render someone “cancelable” often lack any direct connection to the person’s job. For example, in April 2023, thousands of TikTok users attempted to locate the employers of two women after a fashion influencer posted a viral video accusing the two women of mocking her at a baseball game. In fact, a company erroneously linked to one of the women publicly disavowed any association after receiving numerous complaints. The two women eventually spoke out, denying the accusations, and explained the accusations were a result of a simple misunderstanding. While it appears that both individuals retained their employment, this situation underscores the potential for even a minor miscommunication to trigger unwarranted threats to one’s livelihood.
While certain instances of “second wave” cancelations appear to align with goals reminiscent of the #MeToo movement—such as advocating for social change and accountability—this alignment is not ubiquitous. Indeed, second-wave cancelations also target people for expressing progressive beliefs or even activities that have no relationship to politics or social change. Moreover, even when the intention is to address social injustices, canceling an average worker creates a paradox in seeking social justice through employer-based power. As discussed more below, by placing the onus on employers, second-wave cancel culture often merely reinforces existing exploitative power dynamics while doing little to create systematic change.
IV. The Problem with Canceling Workers
A. Exploiting the Vulnerabilities of At-Will Employees
In the United States, a person’s job is an easy target for online attacks due to the reality that many American workers lack job security. As explained in the introduction, at-will employment is the default employment relationship in the United States. The basic principle behind at-will employment is that an employer may fire an employee at any time and for “good reason, bad reason, or no reason at all.” Similarly, employees are free to quit at any time and for any reason. However, despite the appearance of mutual freedom, this dynamic does not reflect the uneven bargaining power between the two parties. Oftentimes, employers have total control in shaping the terms and conditions of employment.
Importantly, the vast majority of rank-and-file employees outside the labor movement are employed at will. Conversely, top-level executives enjoy heightened bargaining power and thus have the ability to negotiate protective termination clauses in employment contracts. A prime example is Harvey Weinstein’s employment contract, which shockingly permitted a certain level of misconduct towards other employees and only allowed termination in cases of criminal conviction or fraud. Evidently, and perhaps ironically, the proliferation of cancel culture highlights society’s recognition of this imbalance between employers and employees and its recognition of the vulnerabilities of at-will employment. It signals a growing awareness that corporations prioritize reputation over the employment of lower-tier staff. Consequently, the at-will employment framework has transcended beyond a tool wielded solely by employers. It has become a tool also wielded by the public, exploiting its vulnerabilities in order to orchestrate cancelations.
In addition to exploiting the vulnerabilities of at-will employment, cancel culture also contributes to class inequality. Several commentators have argued that cancel culture “isn’t real” because many prominent individuals have emerged unscathed or even profited from their “cancelation.” However, such examples do not prove that cancel culture does not exist. Instead, it displays how cancel culture does not affect all equally. No doubt, it demonstrates that an individual may survive his cancelation if his employer deems him too important to cancel. Such arguments also ignore that inequality is what allows prominent individuals to come out from cancelations unscathed. For example, on the one hand, a CEO may be able to buy her way out of her cancelation by donating large amounts of money in a performative attempt to sway public opinion back in her favor. On the other hand, an ordinary worker employed at will has no such luxuries and likely has no meaningful way to defend herself. Indeed, for the everyday worker, job loss often results in the loss of all resources—except for the few provided by social services. Importantly, in such cases of the ordinary worker, it is unlikely an employer will ever deem her too important to cancel.
B. Encouraging Employers to Exercise Excessive Punitive Power
In addition to cancel culture disproportionately affecting at-will employees, cancel culture also encourages employers to exercise excessive punitive power over employees. Professor Ben Levin identifies a phenomenon he terms “criminal employment law,” which exists at the “nexus of employment law and the criminal justice system.” Levin details how employers act effectively as punitive institutions—either in addition to or as an alternative to the criminal justice system. For example, employers may impose punishments on employees in cases where the public perceives the criminal justice system as inadequate. Alternatively, employers may impose punishment in cases where the criminal justice system is not involved at all. This possibility is particularly relevant to scenarios that fall under the purview of cancel culture, where the behavior in question is often legal, and the criminal justice system may not be an available recourse. As a result, when it comes to cancel culture, the public relies on employers to act as judge and jury to administer punishment for perceived public wrongs.
While it is easy to sympathize when a call for cancelation is in response to online accusations of bigotry, the increasing pressure on employers to serve as de facto punitive institutions raises several concerns. One issue is that employers themselves are historically guilty of perpetuating structural and institutional discrimination. Such discrimination manifests in many ways, including discriminatory hiring practices and the gender pay gap. Indeed, Congress passed Title VII precisely to combat these injustices. Given this reality, it is difficult to justify entrusting private employers to aid in the process of canceling individuals in the name of social justice or equality.
Second, the primary motivation for private employers is private concerns—such as avoiding liability and maximizing profits. Unlike the criminal justice system, private employers are not necessarily concerned with fairness when exercising punitive authority. Indeed, when an employer decides to terminate an employee in response to public backlash, it is not handing down “verdicts weighed and delivered on behalf of society.” Instead, it is acting out of self-interest by deciding an employee is now a liability.
Moreover, the absence of legal safeguards against arbitrary punishments exacerbates this risk of unfairness. Indeed, private employers hold the power to mete out punishments even if the punishment is wholly unjustified and does not fit the “crime.” Thus, the potential for termination, despite an employee having a strong claim of innocence, as was the case of Cafferty discussed in the introduction, cannot be ignored. Furthermore, the absence of a statute of limitations for “cancelable” offenses means that past actions can be used against workers at any time, regardless of whether the individual has made amends or changed his behavior. Consequently, the absence of safeguards in the private employment sector renders this punitive power increasingly susceptible to abuse.
C. Erosion of Private Market Safeguards
Cancel culture has also created dynamic where the consumer market now encourages employers to exercise excessive punitive power over employees. While labor organizations have long fought to protect employees from unfair termination practices, cancel culture demands swift and decisive action and condemns employers who fail to act quickly in punishing employees. Unfortunately, this can lead to employers sidestepping internal investigations and ignoring progressive disciplinary procedures in order to appease public outcry. This is significant because private market pressures serve as a vital tool to keep private employers in check, particularly within the framework of at-will employment. Indeed, in the past, employers who acted arbitrarily toward at-will employees would suffer consequences in the form of reputational harm. As a result, this reputational harm would affect profits and thus serve as a market deterrent against arbitrary punitive behavior toward employees. This relationship is described in Richard Epstein’s article, In Defense of the Contract at Will:
The law may tolerate arbitrary [employer] behavior, but private pressures effectively limit its scope. Inferior employers will be at a perpetual competitive disadvantage with enlightened ones and will continue to lose in market share and hence in relative social importance. The lack of legal protection to the employees is therefore in part explained by the increased informal protections that they obtain by working in large concerns.
However, cancel culture has disrupted this dynamic. A recent Thomson Reuters article noted: “Right now, consumers are the ones who are putting pressure on employers to monitor and sanction employee speech that consumers don’t like.” With this new dynamic, the ordinary worker can no longer rely on these private market pressures for protection. As such, cancel culture has ultimately led to handing employers another powerful tool while leaving the working class more vulnerable than before. Therefore, additional regulation to protect workers is necessary.
V. Combatting Cancel Culture
A. Constitutional Protections
Before exploring potential solutions, it is worth examining how courts currently examine employee cancelations. Public employees enjoy the most protection from cancel culture. That is because the Constitution entitles public employees to due process protections and the freedom of speech. In the landmark case Pickering v. Board of Education, the Supreme Court established a two-prong test to determine whether the First Amendment protects a public employee’s speech. The first prong requires the employee to have spoken as a private citizen on a matter of public concern. The second prong involves a balancing test that considers whether the employee’s interest in free speech outweighs the government’s interest in “maintaining the efficiency of its public services.”
A federal court decision offers an on-point example of how a court may apply the Pickering test to a case fitting within a cancel culture scenario. In Goza v. Memphis Light, Gas & Water Division, a city utility employee attended a protest to voice his opposition to removing a Confederate statute. At the protest, the employee commented to a local news station, “What I’m tired of is being portrayed as KKK or a white supremacist simply because I’m a white guy who wants to preserve my heritage.” The employee’s appearance on the news attracted the attention of dozens of people, who then found his name, social media, and his employer. As a result, the plaintiff’s employer demoted and later terminated him due to the public backlash. The employee then filed suit, arguing that his employer fired him in violation of his constitutional right to freedom of speech.
The court utilized the Pickering balancing test to examine the plaintiff’s First Amendment claims. The employer attempted to tip the balance in its favor by arguing that liability and safety issues are what motivated its decision to terminate the plaintiff. In rejecting this argument, the court pointed out that the employer’s internal investigation focused solely on the media coverage of the incident. As evidenced by the investigation, the court determined the employer terminated the plaintiff due to public perception concerns rather than safety issues. In holding for the plaintiff, the court stated:
The fear of “going viral,” by itself, does not appear to be a reasonable justification for a restriction on an employee’s speech. To hold otherwise would permit the government to censor certain viewpoints based on the whims of the public—or, worse, based on a government official’s speculation as to the public’s eventual reaction.
The outcome of Goza offers relevant guidance as to how other courts may interpret the First Amendment to protect public employees from cancel culture. As illustrated in the opinion, an employer’s concern of “going viral,” by itself, is insufficient to outweigh the free speech rights of public employees. This is significant because employers “need not show actual disruption of the public agency” in order to prevail under the Pickering test. Instead, evidence that the employer could “reasonably predict” the speech would cause a disruption is generally sufficient. Thus, the court, by holding that virality alone is insufficient, established a significant limitation on the reach of cancel culture within the realm of public employment.
However, while the Constitution offers public employees some protection against cancel culture, this protection is not absolute. For example, in Carr v. Department of Transportation, the Pennsylvania Supreme Court came to different conclusion from the Goza court. In Carr, the employee-plaintiff worked as a seasonal technician for the Department of Transportation. The plaintiff posted a rant in a Facebook group complaining about school bus drivers in the Pennsylvania area. She concluded her rant by stating, “I don’t give a flying shit about those babies, and I will gladly smash into a school bus.” Several individuals then took screenshots of the plaintiff’s posts and complained via social media to her employer. Subsequently, the department fired the plaintiff. The plaintiff then initiated a lawsuit alleging that the department violated her First Amendment rights when they fired her for making those statements.
In applying the Pickering balancing test, the court noted that the “social media platform amplifies the distribution of the speaker’s message—which favors the employee’s free speech interests—but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.” Despite the plaintiff’s post going far less “viral” than in Goza, the court nonetheless found that, due to the nature of social media, the plaintiff’s posts created a significant potential to erode the public’s trust in the organization. As such, the court concluded that the department’s concerns for potential disruption were reasonable. While the court agreed that the plaintiff’s speech did not affect her ability to perform her core duties or working relationships, it nonetheless found her speech prevented the department from efficiently carrying out its responsibilities.
Thus, the outcome of Carr paints a different picture than Goza. At least in some circumstances, the potential of an employee’s post or speech going viral alone may be sufficient to satisfy the requirement of disruption or potential disruption to the public agency. Therefore, public employees cannot always rely on the First Amendment to shield them from cancel culture.
B. Title VII and Private Employment
In contrast to public employees, private employees generally cannot rely on constitutional rights to protect their jobs from cancel culture. Instead, private employees must turn to statutory protections. This has led some plaintiffs to challenge their terminations through Title VII and other statutes prohibiting employment discrimination. As mentioned earlier, Title VII protects employees from discrimination on the basis of race, color, national origin, sex, and religion. Unsurprisingly, attempts to utilize Title VII to remedy scenarios fitting within the realm of cancel culture have not proven fruitful.
In Koslosky v. American Airlines, Inc., the employee-plaintiff attempted to challenge her termination by arguing that it was a mere pretext for gender discrimination. In that case, the plaintiff, a customer service agent, made several Facebook posts containing racially insensitive sentiments. The posts then went viral, creating a media “firestorm,” with many identifying her employer. After receiving dozens of complaints, her employer opened an investigation and found that the plaintiff had violated the company’s social media policy. As a result, the plaintiff was terminated. Shortly after, the plaintiff filed a lawsuit alleging gender discrimination under Title VII and the Pennsylvania Human Rights Act (PHRA).
In analyzing the pretext theory of liability, the Court applied the McDonnell Douglas framework. This framework requires the plaintiff first to demonstrate a prima facie case of discrimination. It then requires her to adduce evidence that the reason for her termination (i.e., her Facebook posts) was a mere pretext for gender discrimination. To prove pretext in a discrimination suit, the plaintiff must offer evidence to permit a juror to believe that a discriminatory reason was “more likely than not a motivating or determinative cause of the employer’s action.” The plaintiff attempted to establish this claim by pointing to a similarly situated male employee, alleging the male employee also made inflammatory comments on Facebook but faced no repercussions from the employer. However, the court found that the two were not similarly situated. One of the reasons that the court offered was that no one reported the male employee’s social media posts. Thus, the employer could not have treated the two differently without knowing about his posts. The court further held that the employer could consider the viral nature of the plaintiff’s post and that such considerations are not evidence of pretext. As such, the court granted the defendant’s motion for summary judgment.
The Koslosky case is instructive for employees seeking to utilize Title VII to challenge disciplinary action resulting from cancel culture. The decision first holds that the level of viral spread of an employee’s conduct is a factor that employers can legitimately consider when deciding to terminate. Furthermore, considering the level of viral spread is not evidence of pretext. Additionally, the case reinforces the validity of employer social media policies, which are becoming more common as cancel culture proliferates. Consequently, employees may find it harder to challenge employment decisions based on violations of these policies. Lastly, Koslosky illustrates that, even when the employee’s social media account has no ties to the employer and the conduct does not implicate the employer, an employer may still terminate the employee for violating its social media policies.
VI. Off-Duty-Conduct Statutes as a Solution
As illustrated above, most American employees lack job security, rendering them particularly susceptible to the harmful repercussions of cancel culture. As more employers are punishing workers for non-work-related behavior, Congress should consider passing legislation to address cancel culture and safeguard jobs. One possible solution is legal off-duty conduct laws. As the name suggests, these laws generally protect employees by prohibiting discrimination for an employee’s legal off-duty conduct.
While several states have passed such laws, the scope of these laws varies significantly between each state. In addition, most off-duty conduct statutes only address specific behavior, such as prohibiting termination due to an employee’s legal use of tobacco or marijuana. Currently, only four states have off-duty conduct statutes that purport to protect any lawful off-duty conduct. However, judicial precedent interpreting these statutes is sparse, and the scope of these statutes has yet to be fully explored by the courts. In the few cases where courts have addressed these statutes, the statutes are often interpreted narrowly. For example, California’s off-duty-conduct law appears to allow employees to file a claim for lost wages as the result of receiving disciplinary action for “lawful conduct occurring during nonworking hours away from the employer’s premises.” However, California courts have concluded that the statute does not add any substantive rights for employees.
One state that offers some (albeit still limited) judicial guidance as to the potential effectiveness of these statutes is Colorado. Colorado is one of the four states prohibiting discrimination based on any legal off-duty conduct. According to the language of the statute, Colorado law prohibits an employer from
terminat[ing] the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours unless [the] restriction . . . [r]elates to a bona fide occupational requirement, . . . is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer[,] or . . . is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
The Colorado statute is the most likely candidate to offer protection for scenarios that fit within cancel culture’s description. In interpreting this statute, the court in Marsh v. Delta Air Lines explained that the purpose of Colorado’s off-duty-conduct law is to “provide a shield to employees who engage in activities that are personally distasteful to their employer, but which activities are legal and unrelated to an employee’s job.” While the Marsh court narrowed the statute’s scope by holding the legal activity must be “unrelated” to the job, later decisions have favored an even broader interpretation. Based on the broad interpretation by the courts, the Colorado law likely protects activities often the subject of cancel culture.
For example, In Patterson-Eachus v. United Airlines, the court held that the Colorado off-duty conduct statute applied to an employee terminated for a “divisive” post on her Facebook. In that case, the employee-plaintiff made a post supporting the preservation of her former high school mascot, which depicted a cartoon soldier superimposed on a Confederate flag. The plaintiff removed her post but not before several colleagues reported her to her employer. The plaintiff then received a warning for her posts and, shortly after, was terminated. Thereafter, the plaintiff filed suit alleging wrongful termination in violation of the Colorado off-duty-conduct statute. Despite her employer denying that the plaintiff’s termination was due to her Facebook posts, the court refused to grant summary judgment. In denying summary judgment, the Court held that a reasonable jury could find that her employer terminated the plaintiff due to her legal off-duty conduct (i.e., her Facebook posts).
While the plaintiff’s Facebook posts in Patterson-Eachus did not “go viral,” the decision nevertheless establishes that the protections of Colorado’s off-duty-conduct statute extends to social media-related conduct. Thus, Colorado’s law likely provides some protection from cancel culture. Moreover, the statute likely provides even more protection to public employees than is available under the Constitution. As mentioned, public employees attempting to fight cancelations usually must bring their claims under the First Amendment. Such claims are subject to a balancing test in which the court weighs the interests of the government employer and the employee. However, no balancing test is required when an employee brings a claim under the Colorado statute. Further, the statute protects public employees for any lawful off-duty conduct, not just conduct protected by the First Amendment. In sum, Colorado’s off-duty-conduct law offers employees a promising way to combat cancel culture.
While off-duty-conduct statutes offer vital protections to employees, it is important to note that such statutes do not create a blanket prohibition against employers terminating employees under any circumstances. It also does not grant employees the freedom to act without consequences. Rather, these statutes would limit employers from impulsively firing employees for lawful activities conducted outside of work. For instance, if an employee engages in racism or sexism in the workplace, they may still face termination. Moreover, if such behavior has an adverse effect on the workplace, disciplinary action or termination may still be appropriate and lawful. In essence, these statutes safeguard the rights of all employees by encouraging employers to pause before resorting to reactionary terminations prompted by cancel culture. Ultimately, such regulations will encourage employers to administer appropriate and proportional disciplinary actions, as opposed to yielding to the demands of online pressure.
Conclusion
The rise of cancel culture has shifted the power dynamic between workers and employers in a concerning way. While it may have begun as a means of promoting accountability, it has evolved into a culture that targets ordinary Americans who often do not have the opportunity or resources to defend themselves. Consequently, states should take proactive measures to enact legislation that safeguards workers from cancel culture. One possible solution is implementing laws similar to Colorado’s off-duty-conduct statute, which prohibits employers from discriminating against employees for engaging in lawful activities outside of work.
