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The Bud Light boycott continues. Anheuser-Busch is responding by sponsoring vet groups and commissioning ads that "will play heavily on themes such as football and country music". A glance at conservative comment sections reveals a few vocal consumers vowing that no amount of patriotic pandering will change their mind and that they will continue the boycott no matter what.
I am reminded of this apocryphical exchange between two Chinese officers late for battle:
That is to say, a proper incentive structure should not only contain costs for injecting woke politics into business but also rewards for backpedalling.
On the other hand, the undisputed champions of pushing business and people around do not seem too keen on accepting apology. Or do they? The bottom line seems to be: If your public kowtow is more valuable for the propagation of the movement than the display of your head on a spike, you may get another chance (unless and untilyou even slightly step out of line again).
This seems ideal because the incentives for the victim thus contain an effectiveness criterion. Mouthing platitudes is not enough, you need to actually further the cause of your attackers. The uncertainty ups the ante for the victim.
On the other other hand, woke shaming campaigns might not be the ideal blue print for convervatives, given their lack of clout and high-brow media capture.
Football and country music are at best orthogonal to the culture war issue in question. Is Anheuser-Busch willing to put out a statement saying that transwomen are men, or perhaps to send out a commemorative can to a prominent anti-trans celebrity like J.K. Rowling? If not, let the boycott continue until the company is bankrupt, the office buildings burned, the executives' heads on pikes, the barley fields sowed with salt.
They are trying to apologize to their base without alienating progressives; they are trying to go back to appearing neutral. Cannot be done. They made the decision to enter the culture war; now they have to pick a side.
Wouldn't that open them up to lawsuits based on a hostile work environment or some such?
I have to ask - has anyone ever been sued for a hostile work environment, and the "look at all the woke stuff we're doing" was found to be a valid defense? I'm a bit tired of these mundane "gosh, we didn't want to, but we really had no choice" theories of corporate action.
"Appropriate corrective action", usually meaning immediate warnings or firing and removal from the premises, is pretty well-supported in the caselaw: Pakizegi found that an employee's acts were specifically outside of the scope of the employer's liability because they fired the employee after a complaint, and this rule is codified in the CFRs (see national origin, sex).
Having and requiring anti-harassment training, and having and promoting complaint procedures is not as clear in the statute or regs, but is largely supported by caselaw as an expansion of the regulatory requirement for "reasonable care to prevent and detect". For sexual harassment (and because of the convoluted history there, anything gender- or orientation-related) Meritor Savings comes up again, but Faragher v Boca Raton has the bettery summary when it specifically held:
These cases dealt with more direct 'conventional' sexual harassment, but the expansion of their dicta to hostile work environments is pretty established at this point. ((Some states also just require this training, outright: Maine, Connecticut, California, Delaware, and New York, with Maine starting the trend in 1991.)) The Sixth Circuit has some dicta actively requiring it for any related employer defense, from Clark v. United Parcel, where:
But I don't know of any serious literature for how many other circuits use something akin to that rule even if they haven't explicitly said it. Kolstad does mean all courts have to consider anti-harassment training when considering if the employer has provided a "good-faith effort" to preventing harassment, and thus may not be held liable for punitive damages.
The general 'did good things'-style corporate progressive indulgences is more complicated.
Generally speaking and with some exceptions, courts disfavor character evidence, either good or bad. Saying "we posted rainbow hearts everywhere, so we couldn't have fired an employee for being gay" is not only an unsuccessful defense, but in many environments would even be acceptable to bring to a jury, for the same reason that most jurisdictions don't allow "this employer said this sexist thing unrelated to my case, so they must have done said a sexist thing while I did work for them" (there are a few increasing exceptions here in recent years, like California).
But for hostile work environments, the question isn't whether a specific bad act was done, but whether the overall culture of the workplace was "a working environment heavily charged with ethnic or racial discrimination", or their gender/sex/whatever. So there's definitely space for the overall charge of the working environment to be relevant evidence. But it's also a question of fact, eg something that would be resolved during a jury or bench trial, which leaves a lot fewer marks.
((Or even earlier: with a few exceptions, workplace discrimination lawsuits must first be submitted to the EEOC for mediation before a lawsuit can go anywhere.))
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