Last year, after Paula Deen testified that she “of course” had used “the N-word,” and explained why it would be special to be served by a staff composed entirely of “trained” and “professional” “middle-aged black men,” the employees of Deen-owned Uncle Bubba’s Seafood and Oyster House did not don inside-out uniforms in protest. A couple of years earlier, after attorneys marshaled stories and statistics suggesting widespread sexism at Wal-Mart, the vast majority of Wal-Mart employees never publicly called out their boss.
So it was a big deal Sunday to see the L.A. Clippers turn their apparel inside-out, working out with their team’s logo obscured in an unmistakable act of protest against its racist owner. We don’t get to see things like that very often. The image of the Clippers’ collective action, which hung over the anticipation and now fallout from NBA commissioner Adam Silver’s closely watched Tuesday press conference, was in every sense the exception and not the rule.
That’s no accident. In many senses, America is built to avoid activism like the Clippers’, whether it happens in the workplace or anywhere else.
U.S. law specifically protects the right of workers (not just those involved with a union) to take concerted action together to defend or improve their working conditions. But the law is shot through with limitations, as an emergency services worker learned when the Labor Board concluded a message he wrote on the Facebook wall of his U.S. senator, explaining why he didn’t believe his company was earning its taxpayer support, didn’t qualify as protected activism. And the law’s limited remedies make a mockery of its putative promises, as Wal-Mart’s apparent post-strike purge of worker-activists has made clear once again. Absent a government that truly averts or avenges crackdowns on workplace activism, workers are left to willingly martyr themselves, to find other swords and shields to squeeze their boss while defending their jobs, or just to stay put and shut up.
And when it comes to controversies beyond their own working conditions, federal law offers employees essentially zero protection against getting silenced by the boss. Volunteer with the AIDS Foundation, or put a John Kerry bumper sticker on your car, and -- in most workplaces, in most states -- it’s up to your boss whether that should cost you your job. American media unfortunately get most exercised at CEOs for what they do outside of work – the public comments they make, or the political dollars they spend -- not the way they wield their power over their employees. But if a Whole Foods employee is agitated about John Mackey’s anti-Obamacare Op-Ed, or a Chick-fil-A employee is disgusted by Dan Cathy’s contempt for same-sex marriage, American law doesn’t shield them should they say so.
The Clippers, of course, are different. Whether or not Sterling’s (alleged and never denied) comments about African-American fans count legally as conditions under which the Clippers work, the players’ move came with protections that are out of reach for most Americans. They were bathed in a spotlight of near-singular media attention (attention that was comparatively absent when Sterling signed a record-breaking housing discrimination settlement). They have economic and cultural capital that many U.S. workers don’t. And they have a union.
The prospect of being forced to do what basketball bosses are forced to do -- accede to limits on whom they can fire and why, negotiate implicitly or explicitly with their workers, and brook open employee dissent – is one that corporations large and small (Wal-Mart, Kaplan, Amy’s Bread, Target, McKesson, NYU, Iron Mountain, Amazon, NBC Universal, Northwestern) struggle mightily to avoid. U.S. law makes it easier for them to get away with it – not just crushing unions, but snuffing out dissent.
The conversation about Donald Sterling is a richer one because the men who’ve helped make him so wealthy – and their NBA co-workers -- have real protection for their freedom to speak without being purged. The cost of our at-will employment regime is a country in which most workers don’t.