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The New York Times' Transgender Controversy and the Discontents of Workplace Democracy
We Americans consider ourselves a democracy, yet our workplaces are dictatorships. And our latest round of workplace culture warring circles this contradiction without actually confronting it.
If you’re reading this newsletter, you’ve probably heard about the recent internal civil strife at New York Times, over its coverage of transgender issues.
But if you haven’t, basically what happened is some staff at the Times wrote a public letter criticizing the paper for sloppiness and transphobic bias in its front-page coverage of medical care for transgender children. Editors at the paper then wrote an internal memo defending the coverage and reprimanding the letter writers for coordinating with outside advocacy organizations and for publicly criticizing colleagues by name.
Next, leadership at the union for the paper’s staff defended the letter for “raising concerns that conditions of their employment constitute a hostile working environment.” That sparked the anger of other staff at the New York Times (plus some outside commentators), who shot back that criticism of the substance of coverage—and of fellow staff who wrote the coverage—falls outside the bounds of “workplace conditions.”
It was a whole thing on social media for a day or two.
I’m not going to get into the substantive merits of the Times’ coverage of transgender medical care, nor the merits of the criticism of that coverage. I have my opinions on all that, but transgender issues are definitely not my bailiwick.
Topics like unions and worker rights, and especially economic democracy and firm governance, however, most certainly are my bailiwick. Who decides what a company does with its resources and what rules it operates by, and why do they have the power to do that? And I think those questions actually played a powerful subterranean role in this particular row—sitting there right under the surface, shaping the terms of the whole dispute.
The especially interesting thing about this kerfluffle was the claim that editorial decisions by the paper—what gets covered, how it gets covered, etc—fall under the heading of “workplace conditions,” and are thus “protected activity for staff.” The background here is that U.S. labor law allows workers to form unions and negotiate and argue with management when it comes to certain subjects like pay, hours, and workplace conditions. And so long as they stick to those topics, labor law protects them (ostensibly, anyway) from retaliation, like being fired.
The internal memo, that the New York Times’ editors sent in response to the initial letter, stated that, “We do not welcome, and will not tolerate, participation by Times journalists in protests organized by advocacy groups or attacks on colleagues on social media and other public forums.” In other words, if the initial letter qualified as “protected activity,” then that memo was threatening an illegal retaliation under U.S. labor law.
That was certainly how the staff who wrote the letter interpreted matters in their public follow-ups. Leadership at the NewsGuild of New York—the union that includes the Times’ staff, as well as plenty of other media staff in New York City—wrote their own letter that seemed to take the same tack: “Employees are protected in collectively raising concerns that conditions of their employment constitute a hostile working environment. This was the concern explicitly raised in the letter at issue here.” All of this also puts a bit more meat on their argument: anti-transgender bias in the New York Times’ coverage creates a hostile work environment for any Times staff who are themselves transgender, which is what makes the coverage a matter of workplace conditions.
The thing is, if there’s a category of “protected activity” for some forms of worker organizing and speech and public criticism, that implies other forms fall outside the protected zone. So, say, a union at Tesla can argue with and challenge Elon Musk for better pay, hours, safety measures in the factories and so forth, but they can’t tell Elon Musk that the cybertruck is a bad idea, and demand he pursue an entirely different product line. (And seriously, who thought that aesthetic monstrosity was a good call?)
Presumably, at a newspaper like the New York Times, the equivalent “product line” decisions would be the editorial ones about the scope and design of coverage. Which is why some prominent commentators reacted with particular scorn to the notion that the initial letter from the Times staff was “protected activity.”
As I mentioned, some other prominent staff at the New York Times felt the same way. “Criticism of workplace conditions does not include attacking the journalism of other members,” one Times reporter wrote in the Slack channel. “I strongly object to this letter [from the NewsGuild] and I would hope other members of the unit agree with me.”
Other prominent reporters at the Times wrote yet another letter (I know, there were a lot of letters) declaring, “Factual, accurate journalism that is written, edited and published in accordance with Times standards does not create a hostile workplace,” and that, “We are journalists, not activists. That line should be clear.”
Now, I am not a lawyer. My understanding is that the boundaries between what is and isn’t protected activity are constantly getting negotiated in fights like this one. But my guess is that Josh Barro is right, and if this actually goes before a court or the National Labor Relations Board, the idea that the coverage created a hostile work environment, thus making criticism of that coverage protected activity, won’t fly.
But the deeper question I want to push on is, why do we have this division in the first place? Why do workers get protection from retaliation on some topics, but not others?
It is the labor of a company’s workers—their time and sweat and tears and, on occasion, actual blood—that makes the product line possible, be that product line cars or newspaper stories or anything else. Why should those workers, as a collective democratic political community, not get a say over how their labor gets used and deployed?
It is a curious feature of life in America that we understand our society to be a democratic one, yet much of our daily life is spent participating in civil institutions that are wildly anti-democratic.
I’m speaking, of course, about our workplaces.
While a lot of people might instinctively balk at calling businesses “political communities,” that is obviously what they are. Politics is just the art of deciding how we order our lives together. (Thank you, Aristotle.) Every business and company is just a group of people who come together to cooperate towards a common purpose, which requires making collective decisions about who does what and how resources are deployed, as well as about what rules will organize their life together. In other words, they’re a community that has to do politics, every bit as much as a nation state is.
One of the key features of how any community does politics is its system of governance: the process by which those collective decisions are actually made. For the United States, that system of governance is democracy—or elected representative democracy, if you want to be persnickety about it. But, while worker-owned co-ops do exist, the system of governance for the vast majority of businesses in our society is either dictatorship or oligarchy.
A single individual, or family or small group of individuals, own the company and hire management and make all the decisions that the employees must follow. Or a bunch of shareholders own the company, and they get to vote for representatives who hire management and make all the decisions, while the employees still just follow orders. In either case, the workers don’t get a voice and don’t get to vote, and live under leadership that is not accountable to them in any way. Nor is this point just some provocative technical description; life in American workplaces often really is like life under dictatorship, with all the daily humiliations and injustices that entails.
Now, my guess is the dictators at the New York Times are fairly nice, as far as America’s workplace dictators go. But dictators they remain. The editors at the New York Times who sent that internal memo get to make decisions that dramatically affect the collective daily life of the Times’ staff—who gets hired, what they’re paid, the rules of collegiality they must follow, what they cover, and how they cover it. But they are not democratically accountable to that staff in turn. They are merely accountable to the New York Times’ owners: the Ochs-Sulzberger family.1
The long-running purpose of labor unions like the NewsGuild of New York is to inject at least some democratic voice for workers into this system—to make life in American workplaces at least a little bit less like life in Putin’s Russia. Of course, America’s unions have been under sustained assault by both businesses and policymakers for decades. Even in parts of the country friendly to unions—and many parts are very unfriendly—actually getting a union up and running is a trial by fire. The union membership rate for private sector workers in this country is just 6 percent. And like I said, U.S. labor law, as its currently written, limits what topics that democratic voice can actually weigh in on.
Of course, for the American right, even that limited democratic voice for workers is too much. They consider unions a menace, and antithetical to the principles of capitalism. In the squishy center, there’s usually a kind of status quo bias that the current division between a democratic voice for workers on pay and conditions, and a dictatorship of owners for business and product decisions, is right and proper. My guess is that’s where folks like Josh Barro and Andrew Sullivan and the managing editors at the New York Times fall.
But the traditional, old school leftwing position—or the position as I understand it, and the position I certainly associate myself with—is that the end goal should be total worker democracy, from top to bottom, for every workplace in the country. Not just a broader range of topics for unions and worker dissent to weigh in on (though that would also be a good thing) but the replacement of capitalist ownership of all companies with worker ownership—in which boards and manegement and executives are democratically accountable to the staff they oversee. My guess is that a fair number of the New York Times people who wrote the initial letter criticizing their paper’s and a lot of the people who defended them, are pulling from that tradition.
In which case, the technical legal dispute over what does and doesn’t count as “workplace conditions” is something of a stalking horse for a more fundamental fight over how far workplace democracy should actually extend.
The New York Times brouhaha raises broad questions about how journalism should be practiced: How much “free speech” should staff be allowed? Should that freedom extend to working with outside organizations, or to public criticism of colleagues and supervisors? Should papers defer from writing stories that may be intellectual honest, but may also inadvertently provide ammunition to malicious political movements? How does one distinguish journalism from activism, anyway? Is there even any distinction that’s actually coherent?
Everyone who piped up to fight about those questions was arguing over what the “right” answers were, when there obviously aren’t any “right” answers. These are prudential calls, with each answer coming with a different mix of costs and benefits. And while these questions are particular to journalism, every company out there is going to face their own versions of these dilemmas.
If we Americans think of ourselves as a democratic society, then the obvious solution is for each company—each political community—to hash out which answers to those questions they want to be governed by, using an internal democratic process. But that’s precisely what American companies almost never do. And, more importantly, we all accept it as totally normal that it’s something they never do! This inevitably creates all sorts of contradictions in how we’ve gone about prosecuting this latest round of workplace culture war fights.
On the one hand, the people opposed to the new, more aggressive forms of social progressivism (I guess we’ll call it “wokeness”) seem to believe they’re standing up for a silent majority of Americans—and, more importantly, a silent majority of workers at the companies being roiled by the wokeness wars. Which is a democratic impulse. On the other hand, those critics default to viewing the ownership class as the obvious means for fighting this new social progressivism. The general sentiment seems to be that owners and managers at lots of companies, from media to Big Tech and more, have indulged “woke” hysterics from their staff too much, and need to reassert their dictatorial prerogatives. The reaction from folks like Sullivan and Barro wasn’t to ask if a majority of Times staff actually agreed with the initial letter’s criticism, or agreed with its interpretation of “workplace conditions.” They simply declared that interpretation out of bounds, and expressed hope that the Times owners would put the riffraff back in their place. Which is very much not a democratic impulse.
It’s also rather ironic, since there seems to be a good possibility that if the New York Times actually was a genuine worker democracy, the staff who wrote the letter criticizing the paper’s transgender coverage would lose. It’s anecdotal evidence, but the scuttlebutt is that the NewsGuild got some serious push-back from Times staff when it held a townhall to discuss the whole row.
Indeed, the very fact that the social progressives were at loggerheads with Times management makes this fracas somewhat noteworthy. Often in these sorts of stories, its executives and management pushing and supporting the new social progressivism, whether by firing employees who violate that progressivism’s cultural norms, or by having employees sit through diversity trainings and seminars that present pretty specific moral and analytical takes on American history and race relations. And when conservatives protest this sort of stuff, the response from their opponents is usually a knee-jerk invocation of owners’ private property right to run their companies as they see fit. So no one is actually trying to think through, in any sort of consistent and coherent way, how workplace democracy is supposed to actually apply to this new round of culture warring. And folks on the left really ought to grapple with how much they’re relying on the anti-democratic governing structure of American companies to push values from the top down, without the legtimacy that comes from slogging your way through the democratic process.
Conservatives will likely also complain that unions themselves have “gone woke.” After all, the NewsGuild sided with the letter writers instead of the New York Times editors. (Though you could certainly argue this was less an endorsement of the letter writers’ argument, and more the standard saber-rattling that any union usually—and rightly—engages in whenever there’s a tiff between workers and management.) And I have no idea if the NewsGuild’s leadership had reason to believe most Times staff are actually sympathetic to the letter writers, or if they just got too far out over their skis. But the fact is the leadership of the NewsGuild is democratically accountable to the people who live with their decisions, and they can be recalled if a majority of those people disagree with them. The same cannot be said for the editors and management at the New York Times.
So conservatives have a few options here. They can acknowledge that the only democratically accountable institution in play here—the unions—is fighting for cultural politics and values they don’t like. In which case, conservatives have to aknowledge they’re in the minority, and then decide if their going to accept or reject democracy as a legitimate governing system.
Or they can claim the unions aren’t really representative of the workforce. This wouldn’t be an insane argument; like I said, the private sector union membership rate in the U.S. is just 6 percent, and the overall membership rate is just 10 percent. I think you could also make a case that most of the social progressivism is coming from unions that represent college-educated urban professionals, who are demographically much more likely to lean towards those sorts of cultural politics. But in either case, the solution to conservatives’ dilemma would be to massively increase union membership until its voting base is more representative of Americans as a whole.
In general, if a political community is governed as a dictatorship or oligarchy, that arguably makes it easier for a loud and highly motivated minority to grab the reins of power, even if a decisive majority of the political community disagrees with the rules that minority imposes. In a genuine democracy, you have to win a majority of your fellow citizens—or at least a majority of their representatives. In a dictatorship or oligarchy, you just have to win the ear of the small number of people who wield unaccountable power over everyone else. That’s something that everyone upset over the rise of “woke capitalism” should think a lot harder about.
Instead of directly confronting the anti-democratic nature of how we’ve designed ownership rights over businesses, we just sort of endlessly circle around the topic. We build these weird rules and institutions that inject some democracy, but only under particular conditions. Or we build liminal legal structures as an alternative to democratic voice: If workers don’t like the values of their employers and executives, they can’t just vote the bums out, but they can sue the bums if there’s a sufficiently sophisticated argument for a “hostile work environment.”
If we think democracy is the best system of politics we’ve devised to actually hash out disputes in a diverse community with lots of competing values, and come to decisions everyone can live with as legitimate, even if they disagree with the decisions—or if democracy is at least the one system able to get close to that ideal some of the time—then presumably we need to be practicing it in our places of employment as much as anywhere.
The fact that we’re not probably goes a long way towards explaining our current culture war malaise: why no one’s happy, why everyone feels like they’re getting screwed, and why everyone seems to be going a bit crazy.
Technically, the New York Times is a publicly traded company with shareholders, i.e. an oligarchy rather than a dictatorship. But the stocks are divided into Class A and Class B shares. Class A shares are the normal shares traded on public exchanges, and they give owners the right to vote for four of the thirteen seats on the board of directors. The Class B shares are not publicly traded, and they give their owners voting rights for the remaining nine seats on the board, as well as some other agenda setting powers. And members of the Ochs-Sulzberger family own almost all the Class B shares.