Bring your whole self into work,keep your whole self out

1. Introduction

The theme of this special issue assumes a dichotomy between employees’ free speech and employers’ business interests. It comes as no surprise to labour lawyers to find the interests of employees and employers in tension, even fundamental conflict. But despite oceans of ink spilled in scholarship and media about ‘safe spaces’ and ‘cancel culture’, the nature and scope of this dichotomy remains underdefined. Far from being a fringe issue, a distraction from ‘bread and roses’ issues of material welfare, ¹ the present article identifies the ‘worker expression’ problem as not merely a manifestation of the age-old conflict between workers and employers, but a contradiction at the heart of labour law itself: between what the article calls the ‘whole self’ approach on the one hand, and the ‘work-self’ approach on the other.

To briefly summarise what is to follow: protecting workers from sanctions for expression fits with the desire for ‘freedom from work’, and thus a ‘work-life’ (or ‘work-self’) balance. On the other hand, expression can be part of ‘bringing one's whole self to work’. The worker expression problem creates conflict between and within these rationales – for one person's ‘whole self’ may turn out to be incompatible with another's. The ‘whole self’ attitude encourages people to both identify intersubjective dignitary harms in the workplace, and to engage in expressive acts which may generate such harms, potentially pitting workers against each other. This also drives the exclusion of the ‘whole self’ of a worker with beliefs to which managers, colleagues or customers object from the workplace, either through suspension or dismissal.

This is a problem for labour law theory, and inevitably for labour law in practice. But this article flags it as a problem for the public interest and the political system too. The nature of this problem is best appreciated by calling to mind the values underpinning worker expression and how these relate to broader politics. The article therefore proceeds by examining the relationship between ‘work’ and ‘self’ in labour law theory; and then by setting out the philosophical values associated with worker expression in the theoretical model adopted by this paper. First, however, it is necessary to clarify the scope of the article itself.

2. Scope and aims of article

This article is not a doctrinal examination of how labour law deals with worker expression in any particular jurisdiction, though the theoretical discussion herein has been informed by doctrinal reflection the author has carried out elsewhere. ² It is an attempt to bring a fresh perspective to the admittedly crowded field of philosophical approaches to disputes arising out of worker expression, which will inform further doctrinal scholarship the author intends to carry out in future. It identifies worker expression, particularly on matters of political controversy, as part of a practice of citizenship which is embedded in social and legal norms, and thus reflects both intimately personal characteristics of the worker and the constitutional context in which the worker exists as a citizen. ³ As such, the article will not carry out a detailed ‘balancing exercise’ between such fundamental rights claims as may be advanced by employees and employers in the context of a discrete legal dispute. ⁴

The sections which follow, particularly Section 4, rely on certain ethical assumptions about the value of democratic pluralism and the legitimacy of managerial authority under capitalism which not all readers, nor all legal systems, will share. Unfortunately, space precludes a full defence of the attitude adopted below. ⁵ But in highlighting aspects of worker expression which are widely overlooked in law and commentary, the insights in this article should inform interpretation of legislation and judicial decision-making to the effect, broadly speaking, of increasing the level of protection afforded to worker freedom of expression. The extent to and manner in which this occurs will, of course, vary by jurisdiction, in light of doctrinal analysis which is beyond the scope of this article but will be conducted elsewhere.

It is thus beyond the scope of this article, even taken alongside the many other valuable contributions to this special issue, to resolve this latent conflict at the heart of labour law at the level of doctrine, jurisdiction by jurisdiction. However, the necessarily brief establishment of a new theoretical approach to this problem in labour law ought to help guide future research and discussion of these issues.

3. Work and self

Volumes have been devoted to the relationship(s) between work and ‘the self’, one's ‘identity’, and similar concepts. So brief an article as this can barely dip a toe in these deep waters. While acknowledging that ‘self-identity is a contested concept not just within organisation and management studies but throughout the arts, humanities, social sciences, and philosophy’, ⁶ it is necessary to sketch out some version of the concepts relied on in this article. It follows the view of Brown that:

[I]dentity generally refers to the meanings that individuals attach reflexively to themselves… in order to address key questions such as “Who am I?”, “How should I lead my life?”, and “Who do I want to become?”… rendering our selves and social worlds comprehensible and practicable. ⁷

As far back as Aristotle, a close link has been observed between one's working life and one's sense of self. Crudely: the mere labourer, who works only to provide his own subsistence, is denied the individuality and autonomy that gives any sense of self; the homo faber is identified, by his craft, as occupying a valuable role within society and thus has a social self; and the ‘gentleman’, free from the necessities of work, helps to govern society, contributes to its scientific and cultural advancement, and truly expresses his own individual self. ¹⁰ But we know that even workers who depend utterly and immediately on their labour for sustenance, or are otherwise exploited, frequently find or construct meaning in the work, and develop rich cultural norms and symbols associated with that work. ¹¹ As such, even work which may appear menial or demeaning from the outside is not necessarily the preserve of ‘fools and horses’; ¹² and the rhythms and rituals of one's working life are partly constitutive of one's sense(s) of self, not least because they help one find a community of common interest. Likewise, many people (particularly in advanced economies with widespread tertiary education) seek out work which is expressive of their identities; and the income derived from work enables people to engage in (further) self-development, whether through education, leisure activities, building personal relationships, etc. ¹³

Of course, recognising the meaning that many people derive from their work does not deny that there is more to life than work. A well-lived life, according to most thinkers across the philosophical spectrum, is one which pursues a variety of incommensurably valuable goals, practices and relationships. ¹⁴ Historically, a significant focus of effort in the establishment and development of labour law was the protection of what became known as ‘work-life balance’. This has long held great cultural resonance: ‘Our days shall not be sweated from birth until life closes / Hearts starve as well as bodies: Give us Bread, but give us Roses.’ ¹⁵ This constant (and ongoing) battle against the tendency of work to colonise all aspects and moments of life, through the economic pressures on workers – the pursuit of ‘freedom from work’ ¹⁶ – explains not only restrictions on working time and minimum leave requirements, but also minimum wages, insofar as these allow workers to support themselves with fewer working hours.

But even within the brief summary of the relationship(s) between work and self given above, we can already see the shape of two attitudes within the life of the worker, within workplace culture, and within labour law. One takes as given the multiplicity of ‘selves’, which includes the maintenance of a ‘work self’ distinct from one's ‘personal life’. It assumes one's various identities can be complementary, and sees the ability to inhabit each distinctively and separately at different times and in different social environments as potentially liberating. Building on the idea of ‘work-life balance’, this attitude seeks out ‘work-self balance’. This terminology is doubly meaningful: a balance between ‘work’ and ‘self’ is facilitated by the existence of a ‘work self’.

The alternative approach perceives these multiple ‘selves’ as competitive, and the ‘identity work’ needed to maintain the separation of selves as exhausting or even distressing. ¹⁷ There is an understandable reluctance to ‘hide’ one's ‘true self’ in a workplace context, which generates a demand that instead, the workplace accommodate the ‘whole self’ of the worker. While there has always been a school of thought in favour of ‘authenticity’ in the workplace, ¹⁸ ‘bring your whole self to work’ became a clarion call over the past decade in particular, driven by (among other factors) the influence of social media and different cultural expectations of younger entrants to the workforce. ¹⁹ Space precludes detailed consideration of the evolution of this trend and the ongoing debate about the merits of a ‘whole self’ approach for both individual and organisational success. ²⁰ Suffice to say for present purposes that there is a large section of the (global) workforce for whom ‘bring your whole self to work’ resonates as a cultural norm. But even before ‘whole self’ language became commonplace, there were well-established labour laws in various jurisdictions which obliged employers to accommodate various aspects of their workers’ lives which are not strictly relevant to the productive activity carried on at work: for example, the obligation of reasonable accommodation for workers with disabilities. Labour law has long insisted that labour is inseparable from humanity; one cannot purchase someone's labour without getting the person along with it. ²¹

Extant labour law, in the sort of developed market-economy liberal democracies under discussion, generally acts on both of these rationales. Even the same provisions of labour law are capable of being rationalised as being about either ‘work-self’ or ‘whole self’: for example, protection against discrimination on the grounds of religious belief can be interpreted to allow workers a degree of flexibility in their work schedules to accommodate religious observances, ²² and to wear religious symbols in the workplace. ²³ This ‘overdetermination’ of the justification(s) for many specific labour laws, and the field of labour law in general, is a good thing. This author agrees with Collins et al that an attempt to justify every aspect of the regulation of people's working lives by reference to a single moral or political value is doomed to failure – labour lawyers will not find the ‘philosopher's stone’ of the entire discipline. ²⁴

The virtues of labour law being a field characterised by normative pluralism are many, but there are costs if equally valuable perspectives on labour law point in divergent directions in their treatment of specific issues that arise in the workplace. These will be returned to below. First, it is worth interrogating whether it is the case that, as first appears, a ‘work-self’ approach to labour law suggests robust protection for worker expression, whereas ‘whole self’ advocates its restriction in the interests of those who are upset or offended by the expression in question.

Unfortunately, things are not so simple, for two reasons. First, the logic of ‘work-self’ suggests strong protection for worker expression where the expressive act takes place outside the workplace, but very weak protection for expression at work. Conversely, ‘whole self’ can be just as easily construed as affording strong protection for expression at work. Indeed, it assumes that whatever is said or done ‘outside’ work is capable of being ‘brought to work’. This means that in truth, ‘whole self’ is internally conflicted on the issue of worker expression. This conflict manifests as follows. One worker may have deeply-held political, philosophical or religious beliefs which form a meaningful part of her identity and which, if she is to bring her ‘whole self’ to work, she feels compelled to express (perhaps in response to a workplace decision or the expressive activity of a colleague). Note that the expression need not necessarily take place in a workplace setting for the ‘whole self’ approach to be relevant, albeit indirectly: for example, she may post some expressive content online, expecting her employer or colleagues to accept this as part of her ‘self’, without professional repercussions. But simultaneously, another worker may have equally deeply-held beliefs, or ‘meanings [attached] reflexively to themselves’, ²⁵ which are incidental to work, but conflict with the expressive activity of his colleague. He expects his employer and colleagues to safeguard his ‘whole self’ too.

The ‘whole self’ approach thus encourages people to both identify intersubjective dignitary harms in the workplace, and to engage in expressive acts which may generate such harms, potentially pitting workers against each other. It is becoming readily apparent from case law across various jurisdictions that, in a workplace context, one person's ‘whole self’ may turn out to be incompatible with another's. ²⁶ As such, the standard response to such conflicts is a perversion of the ‘whole self’ logic itself: the sanction often reached for by employers is the exclusion of the ‘whole self’ of one employee from the workplace, either through suspension or dismissal. Thus, we see a sort of ‘HR hokey-cokey’ taking place in workplaces all over the world: you bring your whole self into work, and then they keep your whole self out…

Above, it was mentioned that this conflict at the heart of labour law theory has costs for individual workers (obviously), but also for employers and the public. The rest of this article will focus on the latter. It was mentioned above that uncertainty in the law generates social and legal problems. These are inevitable where a field of law's underlying normative rationales point in opposite directions; they are made even worse if even single rationales are internally conflicted on an issue. Among these problems are the efficiency costs to employers, workers themselves, and the public which arise in the course of giving advice and settling disputes about ‘worker expression’, including through legal adjudication. But there is another cost to the public worth discussing, a cost associated with the restriction of worker expression specifically – the ‘spillover’ into political life of such restrictions. The next section of this article will address this issue by examining the value of worker expression to a democratic political system, the threat posed by employer restrictions on such expression, and the normative values underpinning a generally permissive approach to worker expression.

4. The value(s) of worker expression ²⁷

Some preliminary remarks are needed to introduce this section. First, in keeping with the expressed scope and aims of this article, ²⁸ this section will draw attention to important philosophical aspects of the ‘worker expression’ problem. Space does not permit an application of the theory constructed here to doctrinal examples. The author has done some of that work elsewhere, ²⁹ and this field is ripe for future doctrinal research. Second, this section makes contestable claims about normative objectives and assumptions in the field of labour law; not all readers nor jurisdictions will afford these the same level of priority as they are given here, but all should recognise them. Space again precludes a ‘balancing’ of these normative priorities with others, but it is this author's view that the values identified below are broadly underappreciated in the field, and many jurisdictions would be well-served to adjust whatever ‘balance’ they have drawn between these and other values in favour of those set out below.

Finally, it is also necessary to give a brief clarifying note on ‘worker expression’ for the purposes of this section. What follows will inevitably focus on political formation, expression and advocacy. But it is trite to acknowledge that one's political views are ‘downstream’ from general morality and personal and community values. We can see, therefore, inherent connections between (for example) privacy, religion or conscience, and freedom of expression. Each relates to the other in the contribution made to personal moral (and therefore political) formation and expression. As such, this article will use broad language like ‘expression’ and ‘civil liberties’ rather than (say) specific articles of the European Convention on Human Rights. It will also rely on a conception of ‘citizenship’ broadly in line with the scope of political discourse in liberal democracies (even if not reflected in, say, the electoral franchise), roughly captured by the following passage from Pettit:

I take citizens in this discussion to comprise, not just citizens in the official sense, but all the more or less settled residents of a state who, being adult and able-minded, can play an informed role at any time in conceptualizing shared concerns and in shaping how the state acts in furthering those concerns. ³⁰

Playing a meaningful role as a citizen in a democratic society necessarily implies bringing one's own judgment to bear on decisions in which one participates, and therefore making up one's own mind on political, social and moral issues including the freedom to join with others in groups or organisations for the purposes of advancing causes one believes in and putting one's beliefs into action. This article refers to the foregoing as ‘political independence’. Given the inherent threat to political independence of citizens who work in hierarchical workplaces under capitalist modes of production, there are four values which must condition the managerial prerogative in order to protect political independence of worker-citizens, and thus the integrity of the democratic constitutional order. These are: contestation; diversity; moral formation; and integrity. Each will be examined briefly in turn.

5. Conclusion

Workplaces all over the world are being ‘shaken all about’ by the worker expression problem. Partly this arises from confusion and conflict over what labour law is ‘all about’. Are we interested in protecting ‘freedom from work’, such that workers enjoy balance, and by necessary implication separation, between ‘work’ and ‘life’? If so, labour law should protect workers from restrictions on, and sanctions for, their expressive activity (particularly when this takes place outside a workplace setting). Or is the above dependent on a false dichotomy – should there be no ‘work self’ at all, but simply an authentic ‘whole self’ which the law obliges employers and colleagues to respect? That approach is conflicted on the priority it gives to freedom of expression.

What cannot be disputed is the value of expression, including the expression of people who (if their freedom of expression is not protected adequately by law) would come under economic pressure not to express themselves or to join the political agendas of more powerful actors, to a democratic political culture. Expression is a kind of political participation – and to be meaningful, such participation must benefit from political independence. That means respect for constestation, diversity, moral formation and integrity.

Foolish, bizarre, upsetting or offensive as a worker's beliefs might sometimes be to managers, colleagues or customers, this article has argued that they should only be grounds for dismissal in exceptional circumstances. Ordinarily, employers should be obliged to accommodate their workers’ independent moral formation and political activities, and contestation of their own decisions, behaviour and preferences, across a diverse spectrum of the society in which they operate. The alternative, as suggested above, is a process of ‘strategic adaptation’, where citizens will compromise on their own beliefs and cultural backgrounds, deferring to the preferences of their present employer or future employers, in order to earn a living. This not only disempowers workers in the public sphere, but increases the already greater power of wealthy employers, and groups employers happen to patronise at any given time.

And yet: labour law cannot abandon its ‘in-out-in-out’ dance with both ‘work-self balance’ and ‘bring your whole self to work’. Some aspects of political independence (most clearly diversity and moral formation) depend on a certain amount of ‘self-sharing’ at work, since the workplace is often one of the strongest communities in many people's lives. The ‘work-self’ must be broader than pure work, if democracy depends on workers not leaving their citizenship at the door. How much broader is being fiercely contested within labour law doctrine and scholarship all over the world – including in this special issue.

Dedication

I am grateful to Mark Bell and Rachael Walsh for comments on the sections of my PhD thesis (supported by the Irish Research Council) which form the basis of this article, and to Christopher McMahon, Stephen Hurley, the participants at Trinity College Dublin School of Law faculty research seminar series, the anonymous peer reviewers and the special issue editor for comments on draft versions of this paper. All errors and omissions remain my own.