'Live Not By Lies'
You’re Immoral? You’re Fired!
The soft totalitarianism of the expanded use of morals clauses in employment
A reader writes:
I work for a non-profit community arts organization who is working towards instituting a morality clause for its paid staff. Now granted, morality clauses aren’t new, and I know they are often standard clauses for churches, religious organizations and institutions who at times have abused them in nefarious ways. It looks like they are beginning to appear in contracts for secular organizations, beyond just record labels/film entertainment/professional sports due to social media/cancel culture and the importance of image/branding for employers. (i.e. bad publicity affects their bottom line.)I found this video really helpful:At 1:53 she mentions how morality clauses may now be applied beyond breaking the law, to apply more broadly to individuals asserting certain viewpoints/ways of thinking and goes on to talk about how important it is to protect yourself by making sure the language is really specific and being really careful to only align yourself with organizations that have the same values.This does not bode well for anyone, regardless of your politics or beliefs. Institutions or companies seeking to force their agendas on employees could use these against religious, irreligious, conservative, liberal-anyone, as long as a person fails to embrace their values or way of thinking. (And the past has shown this to be true.) If (more likely when) these start to move past the arts into other areas, polarization will worsen and people will be forced to entrench themselves further into their own tribes. I don’t know if people are thinking about these things, I know I wasn’t until now.Is anyone else dealing with this?
Watch the whole video — it’s short, only about six minutes. It’s a statement by a lawyer warning clients that they had better watch closely before going to work for a company to see if they are required to sign an employment contract that has a morality clause. Says the lawyer, “Unfortunately, there’s very little room to negotiate that.” This is why she says that before signing a contract, you should understand exactly what the company’s morality clause covers, and what you are free to say or do. The lawyer doesn’t take a particular ideological point of view, but simply warns that you could find yourself fired if you violate the morality clause, even if you aren’t aware of it.
How far can this go? You tell me. My guess is that in the past, most companies would not have cared overmuch what you did in your private life, as long as you were a hardworking and honest employee. Now, though, if you cross any number of lines, you can be fired for bringing moral disapproval onto the company — if the company has a morals clause in your employment contract.
In the recent past, it would have been unheard of for someone to hold a company responsible for words spoken or deeds done by an employee away from the office, not in an official capacity. But now? If an employee of Cogswell Cogs puts a Trump sign in his front yard, and a racial minority neighbor sees it, then goes on Twitter to complain that a Cogswell Cogs middle manager made him feel “unsafe” in his own neighborhood, the company’s PR department is not going to want to deal with the hassle. If they have a morals clause in their employment agreement that allows them to fire an employee for putting that sign up, they will.
But would such a morals clause be enforceable? Here’s something I would like for your lawyers in the readership to tell me: how far can the morals clause go before it violates the Constitution? What if an employee was photographed going to a church on Sunday where the pastor preached a message that gay activists regard as bigoted? Would his church attendance trigger a morals clause? What about the case of an employee engaged in political activism, even something as minor as putting a sign for a candidate in their yard?
When I worked for The Dallas Morning News, one of the employee rules was that we were not allowed to put political signs in our yard. This was reasonable; it was to protect the newspaper from allegations of political bias. It would not have been reasonable in the case of people like me — a columnist who wrote sometimes about politics — but the general rule was sensible for a newspaper, whose business reputation could have been damaged by its reporters promoting particular candidates or causes. This was the pre-social media era, though, and cancel culture wasn’t yet a thing.
I wonder how things stand now. Companies always do their best to shield themselves from adverse publicity. As the lawyer in that clip points out, most companies will fight to keep themselves at an advantage. Don’t want to go work for a company that reserves, in writing, the right to fire you if you publicly say or do anything that violates the company’s dedication to “diversity, inclusion, and equity,” or whatever they call progressive social values? Then don’t work there. It’s a free country, right?
What happens when all the potential employers sign on to a progressive social agenda, though? What happens when the only way you can get and keep a job is to agree to keep your political, religious, and moral views to yourself, if they conflict with the company’s stated policy? Would you be willing to live by the lies?
This is another example of the soft totalitarianism I talk about in Live Not By Lies. A totalitarian society is one in which every aspect of life is politicized. If the use of morals clauses keeps going this way, then we will have made our society more totalitarian without ever having changed a law. If private companies can police the off-the-job behavior of their employees, to the point of firing them for being “immoral” simply for expressing contrary opinions, or associating with groups of which the company disapproves, then the effect will be totalitarian, even if the state never gets involved. If you have to be silent, even out of the office, about your non-progressive beliefs, for the sake of gainful employment, then how free are you?
Again, I’m not sure where the law stands now in terms of protecting employees covered by morals clauses. I see no reason why principled liberals and conservatives shouldn’t get behind legislation to protect the privacy and right to free expression of all employees, especially as cancel culture grows more powerful. One can understand a religious or activist group legitimately wishing to retain the right to fire someone who agitates in private life explicitly against their organization’s purpose. But that is a narrow exception.
For example, it is reasonable (if regrettable) for the Human Rights Campaign, the big LGBT lobby, to dismiss a lesbian employee who donated money to a campaign for a ballot initiative that would keep MtF transgenders out of women’s locker rooms and bathrooms. Though many lesbians would agree with the ballot initiative, the organization is on record supporting transgender access. If I were running HRC, I would be tolerant of the diversity of lesbian opinion, but I could understand the organization’s leadership wishing to dismiss this employee as having publicly taken a stance contrary to its goals.
But what if Cogswell Cogs did that, on the grounds that its corporate values include building a safer and more inclusive society? Do you really want to live in a world where a corporation has that kind of control over the private activities of its employees?
The core problem here is at base the collapse of the line between public and private. The disintegration of that wall works to the advantage of busybodies who are willing to stop at nothing to force ideological conformity on everyone.
Let me repeat the reader’s question: Is anyone else dealing with this? Tell us.
UPDATE: A reader writes:
Rod, thanks for your post today about morality clauses. However, I’m surprised to see few, if any references throughout your blog to one of the solutions: the “Christian entrepreneurship” you mentioned in a few pages of BenOp.One of the only ways orthodox Christians will have any relief from the woke mob in business is to set up businesses themselves, whether startups or traditional small companies or work as independent contractors. I myself work as an independent contractor, and while I recognize that it’s not the right fit for everyone, I have never in five years had to worry at work about being forced to say or do anything that makes me uncomfortable. There’s no reason that should change over the rest of my career.
Again, I recognize that some people either aren’t comfortable with the risks of entrepreneurship or are already deeply invested in a larger organization, and that’s fine and dandy. But big businesses are going to keep going woke, like it or not, so employees should know that ahead of time and prepare some alternatives. After all, isn’t advance preparation the whole point of BenOp, and now, Live Not By Lies?
Anyway, Christian entrepreneurship seems like a point you could hammer home more strongly as part of blog posts like this evening’s.
Excellent point! Thank you.
Another reader, this one a lawyer:
In my opinion, a morality clause could never violate the Constitution. While the Constitution prevents governments from restricting free speech, it does not afford that protection to individuals vis-a-vis private employers. On the contrary, the Constitution does provide protections for private parties to contract. If you contract away your free speech rights through a morality clause, then there is really no protection for you. If I had to defend a case like that, I’d argue that it should be void as against public policy, which is a legal theory used to try to void certain contractual provisions. This doctrine of law might work, but I wouldn’t be too optimistic in putting up this defense. There might be another avenue to attack termination for certain speech if you can show the termination was discriminatory based upon being in a protected class. In the context we are talking about, you’d Likely need to show you were terminated for your religious beliefs. However, I’m also not very optimistic about this line of attack in the situation where someone have voluntarily entered into a contract with an expansive morality clause.A couple of other thoughts. This will potentially only apply to a very small portion of the public, those who have employment contracts. Most people are at-will employees, with no contract. In my state, they can be fired for any reason or for no reason, so long as they are not a protected class. So, someone subject to a narrowly drafted and well defined morality clause may have more protection than your run of the mill at-will employee. So, the lawyer you referenced is giving good general advice to anyone with an employment contract. My advice would be to do your best to negotiate a morality clause which is limited to specific classes of criminal acts.
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