On Monday, the Supreme Court ruled by a 6–3 vote that the Civil Rights Act of 1964 protects gay and trans people from being fired on the basis of their sexual orientation and gender identity. The decision was historic but, as my colleague Melissa Gira Grant wrote on Tuesday, exists in that nebulous space of “progress,” its impact landing somewhere “between what the law can do and what justice looks like.” As Suzanne Goldberg, a co-director of Columbia Law School’s Center for Sexuality and Gender Law, told Sarah Jones for New York magazine, the decision “does not mean a complete end to discrimination against LGBT workers, but it does mean that employers are on notice that continuing to discriminate is unlawful and may be very costly.” (Even with the law on their side, such costs will mostly still fall on workers who wish to challenge such discrimination in court.)
The decision about unlawful workplace discrimination, and the attendant conversation about the limited means most workers still have to real recourse, came at a heavy moment: In the weeks preceding it, many Black and non-Black workers of color who have been historically marginalized in their industries started speaking out about their experiences at majority-white and white-led workplaces. In media, some of this reckoning was prompted by food writer Tammie Teclemariam, who shared a photo of Bon Appétit editor in chief Adam Rapoport in brownface. Under pressure from staff, Rapoport swiftly resigned and was followed out by Condé Nast vice president Matt Duckor, who was one of the many media executives to help institutionalize a company culture that marginalized and underpaid nonwhite workers. Before that, Black staffers at The New York Times organized a public campaign denouncing Senator Tom Cotton’s opinion piece calling on the military to “restore order” among protests in American cities. In response, the paper’s editorial page editor, James Bennet, stepped down. Predictably, a chorus of white liberals and conservatives called these resignations a frightening example of “cancel culture” or “mob rule” or whatever it’s being called now when white people face consequences for their actions.
Trying to find a common thread between the court’s decision and the media’s reckoning on race might seem like a lot, but the through line feels clear: Removing one bad boss or winning a Supreme Court case does not fix institutional inequity. That solution comes in strengthening the position of all marginalized workers, and that starts with fixing the working models that only encourage this power imbalance.
Most private-sector employees in the United States work under what is known as at-will employment contracts, which give their boss the arbitrary and capricious ability to can them at any moment and for any reason. In every state save for Montana, employers can fire their workers freely without a justifiable reason, as long as they can prove in court the firing didn’t violate anti-discrimination laws. (But as we’ve seen above, that burden of proof can be a hard one to meet.) At-will employment effectively grants bosses all the power throughout the duration of a person’s employment. This is a catastrophic scenario for millions of workers whose basic livelihood and, often, health insurance are tied to holding down a job. And despite this being a grave threat to already vulnerable workers, the question of getting fired only seems to pique national interest when a well-paid white executive resigns in shame.
But beyond actually getting fired for no real reason, at-will employment also functions as the looming threat of getting fired for no real reason. That facilitates a culture of fear in which marginalized employees cannot speak up against their bosses without risking retaliation and, crucially, their incomes. This means that workplaces that foster institutional racism and sexism are basically immune to internal change. Rachel Premack’s reporting on Bon Appétit for Business Insider, which included speaking with over a dozen contributors and staffers, offered clear examples of how this works in practice: “There have been calls for years to diversify the videos, to diversify the staff, to diversify the content, but nothing happens,” said contributor Rick Martinez. Fellow contributor Priya Krishna added that, “It’s odd to be held up as this one big happy family to the media when we are all being unequally compensated and there is an implicit understanding that white talent is more valuable than their non-white counterparts.”
At-will employment is not only about allowing bosses to freely shit-can their staffers; it also locks in toxic workplace cultures that drive out marginalized workers. It’s an insidious process that allows bosses to attribute disproportionate attrition among Black and non-Black workers of color, women, and LGBTQ people to some act of nature or circumstance.
This is actual cancel culture—the means through which workers are routinely forced out of their jobs in service of institutional cultures of white supremacy. But these same bosses and managers who help sustain and cultivate those conditions at work are usually the first ones to cry “cancel culture” when a CEO resigns for being a racist asshole. It’s a cycle that chews up and spits out workers who aren’t able to put everything on the line, which should never be the baseline expectation when fighting for a more just workplace.
A major reaction to the media workers who have spoken out in recent weeks in response to racist workplace practices was a chorus of people telling them how brave they were. And they were brave. They risked their careers and the danger of being labeled “difficult” to point out how their careers and others were being hamstrung by discrimination. Similarly, there is a chorus of justified gratitude for the risks Aimee Stephens, a transgender woman who sadly did not live to see her victory, and Donald Zarda and Gerald Bostock, two gay men, absorbed as they took their cases to court.
But asking every worker to sue or blast their employer on social media is untenable as a long-term solution. There is a better way to ensure that workers can live their lives while they have a job without being under the constant fear of losing their livelihoods. Rather than require every marginalized group in America to wait for their legal challenge to land in front of the courts or some great wave of worker callouts, the best path forward is national just-cause provisions like those Bernie Sanders fought for in his presidential platform. Just cause legally requires employers to formally establish a legitimate reason before letting someone go; under at-will employment, a boss can simply say that the company is going in a different direction, and poof, a person’s income is gone. (Unsurprisingly, the current reality is wildly unpopular—recent Data for Progress polling showed that 68 percent of respondents disagreed that bosses should be able to fire workers for any reason.)
This isn’t a totalizing fix—institutional racism and sexism tends to a find a way—but it’s a pretty direct way to make work more decent for millions of people. Just-cause provisions are a central feature in many collective bargaining agreements and are a big reason why businesses continue to fight against unionizing workers—only 10.3 percent of all American workers are union members as of this January, per the U.S. Bureau of Labor Statistics. But just because the way forward will be difficult doesn’t mean it isn’t necessary. Despite what the law says on paper, or whatever empty commitments to “diversity” private employers might make, bosses will continue to sideline their workers of color and LGBTQ workers, because employers know they still hold all the cards and a healthy legal retainer. Until workers are protected while they’re on the job and not just after the fact, equitable workplaces—the very thing so many are risking so much for right now—will remain an elusive dream.