People are weirdly inconsistent

[drwex]

(nu? this is news?)

So, Brendan Eich is now out as CEO of Mozilla. The proximate cause is that he supported attempts to keep same-sex couples from having equal marriage rights. I happen to think that's severely wrong-headed, but I also think that people who called for his ouster are being weirdly inconsistent, and I refused to sign the petitions calling for him to resign.

You may recall that the case known as Hobby Lobby was just argued before the Supreme Court. And we generally take as given that people like me who are left/liberal oppose Hobby Lobby's attempt to force its founders' religious views onto the employees. One very important legal concept in this case is that the corporation is not its founders, nor the people who run it. The people who run Hobby Lobby can oppose abortion all they want, but that's a personal matter and should not (we argue) grant them a religious exemption to healthcare coverage rules.

Perhaps you see where I'm going with this: how can people argue that Hobby Lobby is not its founders and leaders, but somehow Mozilla is? Had there been a petition calling on the board of Mozilla to stop picking candidates who are a bad fit for the CEO spot, I'd've signed that. But I can't see how someone can consistently hold the view that Hobby Lobby is separate from its senior executives' beliefs and Mozilla is not.

I don't like Eich's view, but his qualification to run Mozilla is his experience and other factors related to the organization. If the board found him to be qualified, then his individual political views ought not to enter into it. And if they do enter into it, then it's the Board's fault for not doing their jobs in selecting the right CEO candidate. I heard that three board members resigned over this, but they were among those who opposed Eich; personally, I think it's the other ones who ought to resign.

Comments

[woodwardiocom.livejournal.com]

The distinction rests on the difference between "I think this should be done" and "I think this should be legally compelled".

[drwex]

Well, presumably we want the compulsions our laws establish to be in line with our values about what we think should be done, but let me try to write this out and see what I think...

I think companies should be legally compelled to keep the religious beliefs of the people in charge of them out of the private lives of their employees and I believe that a person should be removed from being in charge of a company because they have a religious belief I'm opposed to.

Is that an accurate formulation of what you're trying to say? (asking honestly - I'm really not sure.)

[woodwardiocom.livejournal.com]

Trying to answer this forced me to bump into the question, "In what way did they not fire him for his religious beliefs?" which has left me very thoughtful...

(Certainly there must be laws out there about companies not having to hire people whose religions are directly opposed to the mission of the company, but I don't know them...)

[drwex]

Watch me wave my giant "I Am Not A Lawyer" sign. First, I don't think he was fired. I think he was pressured to resign and did. He could have stayed and ridden out the storm - certainly CEOs have done that in other companies.

Generally, a person's religious views are protected in the sense that one cannot fire someone for holding a view unrelated to their work. There have always been some exemptions to that employment non-discrimination principle for religious organizations and SCOTUS recently waded into this mess in a case known colloquially as Hosanna-Tabor. In this case, the Court found (I would argue "created") a ministerial exemption for employees of religious organizations. Prior to H-T, organizations could not apply religious tests to employees not involved in things related to the organization's religious purpose. After H-T, religious organizations are permitted to decide that (some) employees must adhere to religions or beliefs that correspond to the employer's. The scope of this exemption is still debated - despite the Court crafting a unanimous opinion in H-T - and I expect we'll see tests in the coming years.

Now it gets further complicated because it's possible to argue that opposition to equal marriage is not, per se, religiously motivated. People who tried to defend Prop 8 argued this and although they lost, they only lost 5-4 at the Supreme Court and there's no reason to assume anyone who made such an argument would automatically get "religious animus" treatment. I don't know what Eich's religion is, or whether he has religious motivations to oppose equal marriage.

The final complication (which is also implicated in Hobby Lobby) is that the purpose of Mozilla is making software; its chosen methods and corporate culture encourage openness and egalitarian approaches. To oppose someone because one of their beliefs is contrary to the organization's chosen culture is not the same as saying they're opposed to the mission of the company.

[woodwardiocom.livejournal.com]

The final complication is that the purpose of Mozilla is making software; its chosen methods and corporate culture encourage openness and egalitarian approaches. To oppose someone because one of their beliefs is contrary to the organization's chosen culture is not the same as saying they're opposed to the mission of the company.

Given the huge cultural import of browsers (You're soaking in one!), I could lawyer up a good argument that they're not just "making software", in the same way a gun manufacturer is not just making precision machinery.

(I could also argue the other way.)

[drwex]

This is one of the reasons why incorporation paperwork is maddenly vague. If you ever read those things, they say (in a lot of complicated words) that the purpose of the corporation is doing what the corporation should do.

In the case of a foundation like Mozilla, they no doubt make representations to funders as to what will be done with the funders' money but I'm not sure that they have a purpose qua purpose.

[tikibar]

He was NOT fired, he was not coerced; he left of his own volition.

(wex, ignore the anon post; stupid browser had logged me out)

[drwex]

That was my understanding as well

[mrw42.livejournal.com]

I had the same thought (less eloquently stated, even in my own mind) when I first heard about this situation… If it is okay (morally) for companies to block Firefox access to their websites because the CEO of Mozilla opposes gay marriage, would it be okay (morally) for companies to block my products from accessing their resources because I am Wiccan, or poly, or had children born out of wedlock, or just because I am a woman who works?

How have we moved so far from the notion that I might disagree with what you say, but I will defend to the death your right to say it?

[drwex]

That notion is dead. It's buried right next to "I understand what you're saying, but don't agree with it nonetheless."

[whipchick.livejournal.com]

So I'm trying to figure out how to make this thought into a sentence that makes sense...

I think Hobby Lobby *is* it's founders. But that those founders are discriminating against others, and just like racists with lunch counters can't keep away the brown people, and sexists with gas stations can't not hire that female mechanic, I think the craft store can't force its religious views on its employees. Because they're saying, work for us only if you agree with our Christian values regarding your health. And if they want to do that, then they need to be a church instead of a craft store. Flight attendants and waiters shouldn't have to choose between their health and their job - so we made planes and restaurants non-smoking. If Hobby Lobby is the job I'm qualified for and that's available, I shouldn't have to choose between my health and my job.

In the Mozilla case, my argument would be that the views of the CEO bring the company into disrepute. That firing him is a business decision rather than a human rights decision. I don't buy Domino's, but there's a lot of pro-lifers who keep their business alive. If the Domino's CEO was advocating, say, to take the vote away from women, in his private time, and customers started writing letters and stopped buying pizza, there's a case to be made for him not being the best person to run the company, because his reputation is affecting cash flow.

I'm just glad I don't have to switch browsers, because I don't want to do business with a company headed by a bigot. And I agree, the Board should have screened him better.

[drwex]

See my response below.

[eccentrific.livejournal.com]

I mostly agree with this, but I disagree with "I don't like Eich's view, but his qualification to run Mozilla is his experience and other factors related to the organization".

Anyone who publicly represents an organization (which a CEO does) is a public face of that organization; public persona and publicly expressed views become a part of that person's qualifications and should be taken into account in hiring. Now, the board should be totally free to decide what they want in a person's qualifications, but I think that choosing someone who publicly alienates so much of their user base is a bad business decision.

Or in other words: Mozilla should have the right to choose anyone they want, and users should have the right to boycott them in response. Mozilla should probably take this into account in their hiring decisions.

[drwex]

I read this as similar to the response that whipchick made above. Yes, a chief executive is often the public face of the company. That's what I meant by "other factors". The board needs to vet a CEO candidate with respect to how well he will represent the company to the various stakeholders. If the Board did its job then that's part of the decision-making;

As to "users should have the right to boycott them" well, sure. You're free to use whatever product you like. But I argue that it's weirdly inconsistent to equate a browser with the head of the organization that produces it while at the same time insisting that Hobby Lobby can't equate its leaders with its employees.

[eccentrific.livejournal.com]

Huh? Who's equating two unrelated things anywhere?

I'm just saying (potential) customers can and do choose to patronize, boycott or protest a company based on the business practices of that company, and those business practices include how that company publicly represents itself. Presumably the same set of people who are inclined to boycott Hobby Lobby are also inclined to protest Eich.

There's a separate question for Hobby Lobby about whether the business (not the users) have the right to claim a religious exemption in their business practices while not otherwise qualifying as a religious institution. That's a question for the courts. How it is decided will probably not affect the people choosing to protest/boycott HL.

While individuals have a right to espouse their religion and the ability to discriminate against companies because of the religious beliefs of their employees, companies do not generally have the right to discriminate against individuals because of their religious beliefs. And that's because companies are not people and don't have the same protections. Usually. We'll see what the supreme court says.

So... are you arguing companies *should* be treated as people and that if it's okay for people to discriminate than it should be okay for companies to? (or conversely, arguing that it should not be okay for either?)

[drwex]

The whole point of my post was that I see the positions I enumerated in my comment above to woodwardiocom as mutually contradictory. That's unrelated to the issue of individual boycotts.

are you arguing companies *should* be treated as people and that if it's okay for people to discriminate than it should be okay for companies to? (or conversely, arguing that it should not be okay for either?)

I'm arguing that it makes no sense to assert that Hobby Lobby is not its leaders (and therefore cannot meddle with its employees' health insurance) but Mozilla is its leaders (and therefore should not have a leader with a view contrary to the company's general ethic).

This has nothing to do with boycotts, discrimination, or the pseudo-personhood of corporations.

[eccentrific.livejournal.com]

People are not corporations, nor are corporations people. Hobby Lobby is not its leaders, nor is Mozilla. I have not seen anyone arguing this.

Mozilla is totally free to have a leader with a view contrary to the company's general ethic. They hired one. There was no lawsuit, no supreme court case, no prosecution.

Having a leader who publicly espoused views contrary to its customers' general ethic turned out to be a bad business decision though, so the board decided to change it.

[drwex]

People are not corporations, nor are corporations people. Hobby Lobby is not its leaders, nor is Mozilla. I have not seen anyone arguing this.

As to the first one, corporations have had some personhood for some time. Citizens United reinforced and expanded that notion. If you haven't seen people arguing around this I'm sorry, but it's been part of the zeitgeist for some time.

The question of whether the corporation Hobby Lobby is its leaders is precisely the question that is implicated by the case that was just argued at SCOTUS. Hobby Lobby's lawyers are arguing that requiring their corporation to pay for plans that cover specific kinds of birth control implicates the corporation's leaders' religious beliefs. That is what people are arguing.

Finally, the argument about Eich is that Mozilla is (at least on its public face) its leader. You, among other people, are arguing this.

Mozilla is totally free to have a leader with a view contrary to the company's general ethic. They hired one. There was no lawsuit, no supreme court case, no prosecution.

That's true, but wholly beside the point. The point (of my post) is that people are evincing contradictory responses to Eich and to Hobby Lobby.

Having a leader who publicly espoused views contrary to its customers' general ethic turned out to be a bad business decision though, so the board decided to change it.

The board's decision was in response to public pressure. People raising that pressure demonstrated the contradiction I've been writing about.

[pierceheart.livejournal.com]

Hobby Lobby's lawyers are arguing that requiring their corporation to pay for plans that cover specific kinds of birth control implicates the corporation's leaders' religious beliefs.

I doubt you're arguing this, but their lawyers are definitely arguing with two faces (actually, it appears the clients are):

http://www.motherjones.com/politics/2014/04/hobby-lobby-retirement-plan-invested-emergency-contraception-and-abortion-drug-makers

[drwex]

Yes, I'm aware that HL is acting in what seems at least on the face of it to be hypocritical. This doesn't affect the arguments they made, though.

[pierceheart.livejournal.com]

I think it does - when it costs them money, it's important to adhere to their religious beliefs - when it gains them money, it's not important.

I do hope the court takes notice of this.

[drwex]

I'm not certain (IANAL). I believe the Court is restricted to considering arguments of law as presented to it by the briefs and amici. Generally, findings of fact are left to trial courts (though the CAFC is making an utter hash of this with awful de novo reviews in patent cases. But I digress).

SCOTUS will rule on the principle involved. It will then be remanded back down to be adjudicated. At that point, HL's hypocrisy could theoretically disqualify it from taking advantage of the ruling it might win. But the behavior of one appelate doesn't change the underlying Constitutional question on which the Court will rule.

[ckd]

Here's my take on it.

Eich, through his actions (plural: look up Tom McClintock's record and how much Eich gave his campaign) caused pain to people who worked for or with Mozilla, and this meant that some of those people no longer felt comfortable doing so with him as Mozilla's leader.[1]

At that point, his presence in that role was hurting Mozilla's mission just as it would have if he'd announced that he and Steve Ballmer were going on a "Sweaty Monkey Dance" tour to encourage developers to use ActiveX.

If your CEO is working against the specific goals of your organization (even without intending to), that's generally a good reason to get a new CEO. Since, unlike Hobby Lobby, the Mozilla Foundation is a nonprofit with an explicit mission statement in its articles of incorporation, this is directly relevant: "The specific purpose of the [Foundation] is to promote the development of, public access to and adoption of the open source Mozilla web browsing and Internet application software." The for-profit Mozilla Corporation's bylaws start with "The primary purpose of M.F. Technologies (the “Corporation”) is to advance the Mozilla Foundation’s objectives of promoting choice and innovation on the Internet."

[1] I'm more personally affected/offended by the existence of JavaScript, since I don't live in California.

[c1.livejournal.com]

but I think that choosing someone who publicly alienates so much of their user base is a bad business decision.

This is a very western-centric view -- assuming that the only people who count live in "progressive" first world countries. What this view fails to take into account is that Mozilla (and Firefox more specifically) serves the people of countries the world over. It's worth noting that entire continents are populated with a majority that is opposed to homosexual acts of any kind. True, Mozilla might have taken a vanishingly small (yet massively disproportionately visible) hit to its user base in north America/bits and pieces of western Europe, but it might have seen an increase in its user base in places like Africa, Latin America, and Muslim parts of Asia.

[dcltdw]

Quick phone response, poorly thought out.

Mind experiment #1: CEO says "women should not blahblah".
Legally protected? Yes. Good? Yes.
Socially unacceptable? Yes. Good? Yes.

So to me, it's ostracism vs discrimination. Yes, I am ostracized from some groups because of my beliefs, and that's fine (point of pride etc), but I am protected from legal discrimination (cf AZ's crappy law proposals).

I think this argument holds up, but if not, I'd be very grateful if you could punch holes in it.

[drwex]

I'm not sure what argument you're making, so it's hard to respond.

[dcltdw]

I'm trying to draw a distinction between social ostracism and legal protection. Let me spin the scenario around.

Grace Jones is elected CEO of XYZ Corp, and two weeks later, resigns because of public pressure that uh "obviously a woman cannot be CEO of XYZ Corp, because duh".

The distinction, which is a grey area and not a sharp bright line, is: did Ms Jones resign, or was she fired? If she resigned, then that's social ostracism at play -- granted, one I don't agree with -- but to me, there's no legal recourse to that. If she was fired, then that's gender discrimination (although to be honest, I'm not even sure that gender discrimination is prohibited, but I digress).

Of course, there's the grey area of "was her workplace made so unpleasant that she quit".

Soooo.... to clarify my (rather cryptic) original reply, my understanding is that speech is legally protected, and that's a good thing. Likewise, saying "blah blah women blah blah" is socially unacceptable, and that's also a good thing.

---

The fine line a friend pointed out: if Eich says "blah blah gays" and doesn't get promoted, then that could be grounds for legal discrimination against his free speech. But once he's in power -- because promotion is not a symmetric power situation -- then the legal discrimination case disappears, at which point ostracism can be brought to bear. Which... is an odd way (to me) to think about it.

[drwex]

Your hypotheticals are so far removed from the facts that I don't think I can make much of it. But let's address them.

First of all, you don't have free speech at work, or in many private workplaces even if you're not an employee, in the sense you think of it. There's a reason most employees are termed "at will" - it means that the employer can fire you as they please. Some (many) C-level executives are not at-will, but are hired under contracts with specific restrictions on how and when they can be terminated and at what cost.

There are some exceptions to this, but they're rather narrow. You can't terminate (or demote, or pass over for promotion, or pay less, or otherwise treat unequally) members of a protected class without showing good cause. That includes women, older people, people of color, etc. It might now also include GLBTQ etc people - some (many) states have laws on that but there is no Federal law protecting this class of persons.

There's another class of exemptions for semi-public places such as malls, but that's farther afield.

The question of whether someone can be terminated for speech outside of work is also well-settled law: yes. People have been fired for Facebook posts, for example. In some jobs your speech is even further restricted. Many places prohibit public employees from engaging in direct political participation, particularly while in uniform. Some places have even gone so far as to extend such bans to all municipal employees including such people as librarians. I think that's silly, but it's been held legal.

But again, Eich wasn't terminated. He resigned. I'm having a hard time seeing how your analogy addresses the point I'm trying to make. I hypothesize that your point is something like "It's OK to call for the resignation of someone whose political views we don't like" to which I say "Sure. And...?" because I'm at a loss to see how this addresses the dichotomy I started with.

[intuition-ist.livejournal.com]

Yet more reasons to never work for a governmental entity. But that's not why I'm commenting.

You said "you don't have free speech at work". In reality, one has the right of free speech wherever one damn well pleases, BUT there are often consequences to that speech, which one should consider before speaking. The difference in attitude is one I'd generically promote.

Also -- personally, I think the employers that fire people for Facebook posts (or the like) are idiots, and they're getting the quality of employee they deserve. Young poorly-paid people generically despise their employers for being idiots and not paying them better, and they blow off steam by posting about their frustration on social media. If the companies don't already realize that, then they're even stupider than their policies.

[drwex]

You're right that "you don't have free speech at work" is shorthand for "the free speech protections people generally associate with the First Amendment don't apply in workplaces."

I also just came out of many years of working for the financial industry, where people are extra-careful about what they say because not-well-thought-out words may be (mis)interpreted as giving financial advice, which can leave both the individual and their employer in a liable position. This applies regardless of whether one posts to Facebook or whatever. That's not to say that some employers are not idiots about employees' outside-of-work speech, but guess what, there are idiots everywhere.