Where Work Is Headed—Addendum 2

In the non-stop, intensive media attention to the George Zimmerman murder trial, you may have missed another court decision, one with perhaps equally broad, if not as deadly, implications for ordinary Americans.

The Iowa Supreme Court upheld a dentist’s decision to fire his dental hygienist because she was so attractive as to be “irresistible” and thus posed a threat to the dentist’s marriage. The court accepted the defense’s argument that the hygienist was not fired because of her gender but, rather, because she did not dress or behave appropriately for the workplace.

I’ll let you decide why she was fired.

The hygienist had worked for the dentist for almost ten years. There was no evidence that her style of dress had changed appreciably over those ten years. But there was evidence that her employer began to take fuller notice of her style of dress over the last year of her employment. She and he did exchange some text messages outside of work, but most of the texts were about mundane topics that had come up in conversations at work. There were several sexually suggestive text messages, all from the dentist to the hygienist, but she never replied to any of those messages. Those messages were, however, discovered by the dentist’s wife, who immediately demanded that he fire the hygienist. The couple went to their pastor for advice, and he concurred that, for the good of their marriage, the hygienist should be fired.

One might offer some after-the-fact advice and say that the dentist might have been better served by consulting a labor attorney, rather than his pastor. But, given the decision by the Iowa Supreme Court that the hygienist was neither wrongfully terminated nor entitled to any compensation because of her termination, perhaps the pastor was an adequate source of legal advice.

By the way, like most of the governors and legislators who have recently pushed through new restrictions on women’s healthcare options, the Iowa Supreme Court that rendered this decision is entirely male.

In response to the original court decision on that case, Jake Blumgart contributed an article to AlterNet on the state of workers’ employment protections in the United States. The title of the article says it all: “It’s All Too Easy to Get Fired in America: In 49 of 50 States, You Can Be Fired for Any Reason.”

What follows is beyond the scope of Blumgart’s article, but germane to the issues that it addresses. When polled, most American workers have indicated and continue to indicate that they feel that they have some legal protections against arbitrary firing—that is, they believe that their employer needs to have a legitimate reason related to their job performance in order to fire them. Most American workers believe that if they are fired arbitrarily, they will have some legal recourse—that they can sue their employer for wrongful termination—if, of course, they have the determination and the financial wherewithal required to do so. Tellingly, these perceptions extend across all classes of workers, from the most educated to the least educated, from the most highly paid to those earning minimum wage, and from pro-union states to right-to-work states.

But the reality is quite different from the common perception. As Blumgart points out, most American workers have no employment protection whatsoever. Federal law does protect workers against arbitrary firings due to racial or gender discrimination, but very few employers today are blatant racists or male chauvinists. (This does not mean that racism and sexism have disappeared from the workplace. It does mean that, like the American population as a whole, employers who have racial and gender biases have learned to avoid the language that openly exposes such biases. So, in a sense, what we have achieved is less progress than entrenched prejudice masked as progress.)

Twenty-one states also have laws protecting workers from being fired simply because of their sexual orientation. But there is no federal protection for gay, lesbian, bisexual, and transgender workers.

Public workers are ideally protected from arbitrary firing by Civil Service protections, which exist at almost all levels of government, from the federal to the local, across the United States. But the specific protections provided by Civil Service laws vary considerably at the state and local levels, and ultimately those protections are enforced first by political figures and then by judges whose decisions may reflect strong political ideologies that are pro-business and anti-labor.

Public workers are, however, the most unionized sector of the national workforce, and almost all union contracts contain “just cause” clauses that prevent arbitrary firing. So it is hardly coincidental that in states with Far-Right governors and legislatures, public-employee union rights—and the right of public employees to bargain collectively or to belong to unions—have been under relentless attack.

In the private sector, only about 7% of the workforce is unionized and therefore still protected by “just clause” articles in their contracts.

So, in sum, anyone not victimized by extraordinarily blatant racism or sexism and not protected by “just cause” article in a union contract can be fired at the whim of his or her employer and will have no recourse whatsoever.

Before I turn to the one state that offers some “just cause” protections to all of its workers, I would like to make several points.

First, in all developed nations besides the United States, all workers are protected by federal statute from arbitrary firing. The strength of those statutes may vary from nation to nation, but the United States is now the singular outlier among developed nations in its failure to recognize this basic underlying principle of workers’ rights.

Second, as American manufacturing has shifted from a labor-intensive to a highly automated sector and as the large industrial unions tried unsuccessfully to maintain their numbers and their power, American corporations and Far-Right politicians were very successful in funneling the disillusionment of displaced workers into a demonization of unions. As the anti-Labor talking points were framed, unions could not protect the jobs of dedicated workers, but they did manage to protect the jobs of underperforming workers, who undermined the profitability of the companies for which they worked to such an extent that they ultimately cost everyone their jobs. As the anti-Labor talking points were framed, the excesses of organized labor were a major factor in undermining the hegemony of American manufacturing and the general prosperity of the 1950s and 1960s. Lost from those talking points was the reality that the rise of organized labor was the result of a century-long struggle against the cyclic economic damage caused by the excesses of corporate America. At a distance and with any amount of objectivity, the essentially circular arguments that demonize organized labor are ludicrous. But, in the midst of the rapid downsizing of the workforce employed in American manufacturing, almost anything that the industrial unions did seemed to provide still further evidence that they were the core cause of the deepening crisis in manufacturing employment, rather than the major institutional casualty of that crisis.

Third, the corporate and political opponents of organized labor have generally kept the emphasis on the need to control the damage caused by unions and have diverted attention from how undermining the effectiveness of unions has led to an increasing lack of any controls on corporations’ treatment of their employees. Allusions to the protestant work ethic and to the cultural mythologies surrounding the self-made man have been used to convince workers that an employer’s right to protect his business interests by firing any unproductive employee trumps the right of all employees to be treated fairly by their employers. In fact, corporations and Far-Right politicians have recycled the same basic arguments in incessantly asserting the need to limit the legal options of “disgruntled” workers and the judgments that can be awarded to such workers who do manage to take a case to court and to have it argued successfully.

Finally, in terms of my own remarks, underlying all of this is the assumption that any excesses of organized labor are somehow anti-American, perpetually damaging to the American economy and the national interest, almost inherently corrupt and even patently evil. In contrast, any excesses of American corporations are reflective of a distinctly American sense of individual initiative and an inherently American determination to stretch the limits of personal potential. Such excesses are not permanently damaging because they are simply a “natural” part of the business cycle, and they are ultimately even good for the American economy, the American people, and the national character because they force necessary adjustments and thereby contribute to the “common good” of the nation. (The Supreme Court’s equivocation of corporate and individual political contributions may have been the ultimate expression of this mindset.)

Indicative of how such perceptions of organized labor and corporations are fixed in diametric opposition is the striking difference in how they have been and continue to be characterized at the international level. Any international coalition of labor organizations is immediately denounced as the equivalent of a Marxist-Leninist threat to American sovereignty, to independent decision-making and action. But multi-national corporations that have originated in the United States are lauded as representations of and ambassadors for American values and national interests, even if the bulk of their assets and their operations—and their financial interests–are now located elsewhere.

To illustrate the dichotomy in even simpler terms, paying “fair share” union dues is an anti-American violation of individual rights, but avoiding taxes on income earned or squirreled away overseas is just good old American business acumen.

Those ordinary Americans represented during the 2008 presidential election in the person of “Joe the Plumber” have been made to believe that their extremely remote chance of becoming Bill Gates, Steve Jobs, or any other current manifestation of the “self-made man” can be preserved only by eliminating their own and everybody else’s everyday protections from any abuse at the hands of their employers. This willingness to stand opposed to one’s own self-interest for the sake of a fantasy is a victory for corporate propagandists. But not for most Americans. Not even for those ordinary Americans willing to embrace it.

But, to return finally to Blumgart, the one state that does afford all workers some “just cause” protections is Montana. But because the law was enacted with corporate support as a way to limit the suits that could be brought against employers and to limit the judgments that could be rendered against employers, even the Montana law has more symbolic value than actual value for most workers.

Worse, a Far-Right effort to effectively gut that law was prevented only by the veto of the state’s Democratic governor.

The full text of Blumgart’s post is available at: http://www.alternet.org/print/economy/its-all-too-easy-get-fired-america-49-50-states-you-can-be-fired-any-reason.

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