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Notes -
Washington Post v. Karen Attiah
An arbitrator has asked and answered:
Mrs. Attiah is the Washington Post writer who rather famously and falsely claimed that Charlie Kirk had said "Black women do not have the brain processing power to be taken seriously" in the immediate aftermath of Kirk's murder. I was going to say ex-, but that's not the case anymore. It's now established rule that the Washington Post can not fire someone merely for dancing publicly in the blood of a recently murdered man to disparage people on the basis of race and gender, and making false claims while doing so.
In this case, at least.
There's a legal formalist perspective where this is defensible. The Post may have included all of Attiah's post-shooting posts in the strict text of the termination letter, but they only quoted a couple posts, so maybe the arbitrator felt that the rest weren't sufficiently plead. Though she does spend enough time to repeat, without noting as false, the false attribution of the quote to a dead man. The Post did argue 'security concerns' at length, and the extent that rhymes with a heckler's veto isn't a great policy matter to rest on. The comparisons to Dave "Ratfucker" Weigel and a random contractor not covered by the stated policies might be pretty nakedly different conduct given context, but perhaps if you squint hard enough and there's no other comparisons, you get stuck with the bad approximations. Attiah isn't a government employee, but she is a union one, so as tempting as the obvious Damore comparisons get, they do have limits.
But it's still the floor, now.
Since this was decision by arbitration over violation of a union CBA, the question of whether saying something stupid and offensive qualifies as "gross misconduct" seems to depend on how their contract was written, not whether the average person thinks dancing in the blood of a murdered man is gross and unprofessional.
While we can all fill in the obvious shoe-on-the-other-foot hypotheticals, I would like to know if there are any comparable cases where a Post writer was fired for "gross misconduct" for social media posts.
Probably not. Sonmez was fired, but it took a six-day tweetstorm (and, frankly, a psychotic break), presumably with a bunch of warnings, and she had past bad conduct and punishment (including a previous incident involving a tragic death). Horwitz got a short suspension for plagiarism (copying two paragraphs about a legal regime), not a firing. Achenbach's hard to tell since it's a MeToo era case, so no idea where to put it except to say he was only suspended. In other cases, people just duck out of the business in a 'you can't fire me I quit sense': Cooke was definitely worse, and 'Ratfucker' Weigel wasn't worse and resigned or got a suspension, depending on which time you want to go with.
If you include other major press, you can find examples, even union shops like McNeil from the NYT or government-adjacent groups like Williams at NPR. But they're a different CBA or legal regime.
Of course, that leaves us debating whether a major newspaper has its hands tied because the staff behaved, or the previous owners were nutjobs letting bad behavior go reign free, long enough.
I notice that the arbitrator did not point to a part of the contract defining or limiting the bounds of "gross misconduct". Instead, she made a comparison to someone not covered by the policy to begin with, and described his situation in the last favorable manner.
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This appears to be an appeal to formal rule-based systems. I'm comfortable arguing that neither this system nor any system like it has ever or will ever protect people like me in a situation like this one. If I'm correct in that argument, people like me have no interest in accepting the output of this system, nor in maintaining or preserving systems of this sort generally.
That being said, you're looking for context, and that's a reasonable thing to do in my view. Even if a system is biased, there's still something to be said for consistency over time, even intratribal.
"So, now you give the Devil the benefit of law!"
"Yes! What would you do? Cut a great road through the law to get after the Devil?"
"Yes, I'd cut down every law in England to do that!"
"Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"
Why depend on the law for your own safety's sake? Why not cut down every law in England to get after the Devil, and then if he turns round on you, just prop them back up again to hide behind? What, specifically, keeps them down?
This is a serious question, and it deserves a serious answer.
[EDIT] Let me make the point more explicitly. You are making the argument to me that if one disregards the laws, then the laws will not be there to help one when they are needed. My argument is that my opponents have disregarded the laws, and so should not be able to appeal to them. If I am right that they have disregarded the laws, but you insist I should still give them benefit of them, then I ought likewise to be able to disregard the law and still receive the benefit of them, so disregarding their appeal to the laws is the correct position to take. If your argument is that once disregarded, the laws cannot be appealed to, then my opponents' previous disregard means I should reject their appeals now, and disregarding their appeal to the laws is likewise the correct position to take.
If your argument is that they should be able to disregard the law an unlimited amount of times and yet still appeal to the law, and if I reject such appeals I will be denied the benefit of the law in my hour of need, I will point out that this is a needlessly convoluted way of declaring oneself an enemy.
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Define people like you?
This was a union arbitration contract. Union arbitration contracts are notorious for protecting people that did verboten to liberals things(normally sexual harassment but racial comments definitely would be a thing there).
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Yes. I still care about these things. If you're right it won't matter.
If I'm right, it might not be too late to arrest the process or at least mitigate the damage, or in the final extremity to see it coming and bypass doom. But arresting the process would mean building some sort of durable norm, and I think you would agree this isn't that. If the idea was that we bury the idea of stochastic terrorism and group accountability for all imaginable consequences of hostility to the other and actually restored an iron law of free speech maximalism from this day forth, that would be one thing. But it seems to me that anyone who doesn't realize that this will wrench back the other way the moment the shoe is on the other foot is lying to themselves. This is a conversation we can have in advance, and it seems to me that we should have it in advance, if for no other reason that preparing to exploit that inevitable flip to the maximal extent possible is absolutely, obviously in my Tribe's interest, and any counter-argument to pursuing that interest zealously is never going to have a better chance of succeeding than it has right now.
What am I supposed to do about it? I do argue for free speech maximalism and fairness. It makes me as popular among my Blue tribe cohort as I am among the Reds here.
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