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What can Martha Stewart and Donald Trump teach us about the law of the workplace? Surprisingly, a lot. In the midst of the usual reality-show madness, their television program, “The Apprentice,” sheds some actual light on troubling aspects of modern employment. Collegiality concerns, the presence of cliques in the workplace, the at-will employment rule and employer-versus-employee expectations all factor into the choice of an “Apprentice” winner. We see played out on TV the reasons why women and minorities don’t fully realize their potential at work, as well as common misunderstandings about the extent of job security. In short, Martha and Donald are telling us the awful truth about the American workplace, whether they mean to or not. YOU’RE WATCHING As most Americans surely know by now, the original version of “The Apprentice” features real estate mogul and relentless self-promoter Donald Trump, and the new version, “The Apprentice: Martha Stewart,” centers on home-decorating guru and ex-con Martha Stewart. The two editions follow the same basic format. Contestants participate in a variety of semi-realistic business tasks, competing for a coveted one-year position, which offers excellent pay, training and high visibility. Each week one losing candidate is dismissed from the show. In the program featuring him, Trump utters the now-famous catch phrase “You’re fired!” Stewart, on the other hand, dismissed the first losing contestant on her show by quipping, “You just don’t fit.” That was a telling choice. In using “not fitting in” as a reason for dismissal, Stewart was essentially telling contestants to follow a particular workplace culture and style or else face negative consequences. The implicit message was the need not simply to work well with fellow employees but to be more like them. And that raises a tough question: To what extent should anybody’s career depend upon his or her ability to fit in socially with co-workers? Much of the litigation in this area has arisen in the university setting, where school policies often include collegiality as a necessary requirement for faculty promotion or tenure. But informal standards of collegiality exist in many, if not most, workplaces. It is common knowledge that many employment decisions hinge on a person’s ability to “get along” or “play well with others.” Of course, working well with others is a reasonable job requirement. Employees who can cooperate, manage difficult colleagues and resolve interpersonal conflicts facilitate the smooth running of a business. Too often, however, collegiality demands go beyond good people skills to seemingly mandate that people on the job be friends. As a result, collegiality requirements can have a further disparate impact on groups that have already been traditionally excluded from corporate power structures, as professor Sumi Cho of DePaul University College of Law has shown in her research. YOU’RE DIFFERENT Women and minorities can find themselves excluded from all kinds of workplace opportunities when they miss out on the modern variations of the old boys’ network. The oft-cited classic examples are the deals made on the golf course or in a private club where women and minorities are still excluded or, at least, made to feel uncomfortable and out of place. Even in this day and age, unbelievably, some companies give active sponsorship or tacit approval to employee gatherings at strip clubs and topless bars (although that sort of practice raises an incredible number of red flags that would make most employment defense lawyers extremely nervous). But exclusive private clubs and topless bars are only the most egregious examples of this kind of employment discrimination. More common are the more subtle types of inclusion and exclusion that happen practically every day. Things as subtle as the clothes people wear or the jokes people tell can determine whether someone “fits in.” Through shared assumptions about what is right and what is funny, those who come from similar backgrounds — ethnically, religiously, geographically — can bond together and shut others out. Similarly, senior male employees who banter over the sports scores with junior colleagues may be leaving a female worker out of the conversation — whether or not she enjoys the subject. When they decide to catch a baseball game over the weekend, they may not think to invite her. One baseball game becomes season tickets, and suddenly, one gender has stronger ties to managers than the other. Or perhaps a majority of the office go out for drinks and gossip after the day is done, partially just to hang out and blow off steam, but partially to network with one another in a relaxed setting. Those workers who cannot attend, perhaps because of conflicting familial obligations (which still fall most heavily on women), lose out on the chance to make connections that can lead to career advancement. Subtly but surely, workplace cliques may designate some women and minorities as “outsiders.” They can lose out on mentoring, training and, finally, promotion, regardless of their professional merit and productivity. Anti-discrimination law has yet to find an effective remedy for this type of soft bias. Much of it may be subconscious, and those engaging in it may not even realize what they’re doing, which makes it that much harder to eliminate. Those male workers who fail to invite their female colleague to the baseball game are not being malicious, but in failing to question their own biases, they exclude her from a valuable networking opportunity, which has the same bad result. YOU’RE FIRED But I don’t mean to criticize only Martha Stewart’s workplace reality. Donald Trump’s cavalier method of dismissing his would-be underlings is also troubling. In real life, being fired is a traumatic event. The loss of a job almost inevitably results in financial instability and often a diminishment of one’s professional and personal identities. To see a firing enacted in such a harsh and casual way should be emotionally difficult to watch. Yet the boardroom discussions and Trump’s catch phrase apparently are among the most popular aspects of the show. When I’ve asked people why the firing appealed to them, a few themes emerged: Some said that they empathized with Trump, because he was dismissing those who had performed poorly. Others, in a display of Schadenfreude, admitted that they were just glad it was not them being dismissed. As professor Pauline Kim of Washington University School of Law in St. Louis has empirically documented, many non-unionized workers (and, presumably, many “Apprentice” watchers) do not fully realize the extent of their own job insecurity. Often, people believe that if they show up at the office and do their jobs, absent any obvious difficulties with management or economic downturns, their employment will last. They believe what they think the boss has promised them: continued employment for hard work. That, of course, is not the law. Indeed, while it may be good employment practice to document reasons for firing someone, no documentation is required. Under the at-will employment rule — the law in all jurisdictions but Montana — an employer may fire an employee for a good reason, a bad reason, or no reason at all. Although federal and state anti-discrimination statutes, whistleblower laws and other legal provisions put restraints on an employer’s ability to use a bad reason to fire an employee, the underlying at-will regime remains substantially unchanged. The reality of the worker’s bargain looks a lot more like Trump’s deal. Altogether, reality TV’s portrayal of employment presents a realistically bleak picture for workers. You can work hard, but you still might get fired without notice. Even if you’re productive, you might (fatally) fail to lunch with the right crowd, acquire the right friends or excel in the company tennis tournament. Maybe someday, perhaps with a push from the legal system, managers will learn to consistently look beyond appearances and hire and promote on what should be the only legitimate consideration: professional merit. But until all the factors that go into success on the job are critically analyzed and generally understood, equal employment opportunity will remain merely an aspiration. For now, it might be wise to fit in, or you might find that you’re fired. Miriam A. Cherry is a visiting assistant professor at Hofstra University School of Law in New York state and an assistant professor at Samford University’s Cumberland School of Law in Alabama. She teaches courses in employment and contracts law.

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