To paraphrase Bill Maher, the offender described in the following argument may not be worth defending, but his rights are.

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As I argue in THE SEPARATION OF WORK AND PLAY, I believe it is unethical for companies to fire employees for morally suspect actions committed outside of the organization’s domain (unless those bad acts are undeniably relevant to the functioning of the company and/or the safety of the company’s staff or clients). My reasons for such censure of employer-delivered justice are twofold:

(1) Employers frequently make their decisions at the behest of perceived popular opinion, i.e. mob justice (or social media mob justice these days), and so are often going to get their moral judgments wrong (as in the past when the public catastrophically believed that same-sex and interracial coupling was immoral). And:

(2) Even if we felt the employers were infallible morality police officers, I think it is actually harmful to society to disown bad actors from all social spheres.

For instance, if someone says something racist in their non-work life, then exiling that person from places where they didn’t exhibit racism, such as their workplace, or perhaps their community centre, is not going to reduce their racism—it is going to nurture it.

I have heard many interviews with reformed KKK members, and they always explain their racist genesis in the same way: they were angry about something in their life, and they found camaraderie and acceptance in a racist cult, so they signed onto racism. So, if we truly want to reduce racism, then we should try if we can to criticize the behaviour within racist incidents (and punish it if it involves illegal acts) without universally disavowing any potential humanity in the offenders.

However, when we say that—because a person did something wrong in place X—they are restricted not only from returning to place X, but they are also no longer welcome at their workplace, and are ineligible to return to their favourite watering hole, we are exiling such flawed beings to the murky boundaries of society where their resentment will be given sanctuary.

My argument is not that bad behaviours never deserve punishment. Criminal actions—depending on the severity—earn one the right to temporary or even permanent exile from the general population. And, when one does something immoral, but not illegal, then—along with criticism—sometimes the bad behaviour may justify sanctions.

For instance, if you’re verbally abusive to the staff at your local medical clinic, then maybe you’ve forfeited your right to return there, but that doesn’t mean that you should be banned from every medical facility in the country and fired from your job for failing to live up to the values of your employer. Instead, my submission is that punishments should stay in their jurisdiction. If you behaved badly in X place, then X place may have good reason to limit your return to X place.

In contrast, most modern mainstream pundits (and their social media betters) presume that morality policing is the “right thing to do.” (See my analysis of a CBC Radio Q panel and their impenetrable confidence that it was morally right to fire Roseanne Barr from her fictional TV show Roseanne because of improper things non-fictional Roseanne said on social media.) In fact, such termination-seeking commentators suggest that any employer who is silent on the dishonourable outside-of-work actions of their employees is complicit in—or at least condoning of—those behaviours.

But consider this morality tale: let’s imagine that a person has cheated on their spouse. In my view it is up to that cheated-upon spouse to decide whether to exile their lesser half from the arena in which that poor conduct is relevant, i.e. their marriage. However, while the general public may rightly believe that infidelity is morally precarious, do we really think that the cheater’s local grocery store, rec centre, and place of employment should be weighing in not only with their opinion of infidelity, but also with a punishment for it? Obviously not. To stay out of such a dispute does not mean that the employer is necessarily anti-fidelity: it just means it is not the employer’s business to investigate and pronounce judgement on what goes on in the bedrooms of their employees.

With that example, the notion of employers acting as outside-of-work morality police is, in my opinion, settled.

Recently, though, a more difficult question has landed on my ethics desk:

Should you be fired from your current job for bad actions you are presently discovered to have committed in your previous employment?

My instinct is to say No for the same reasons as above. Yet, convention has long allowed potential employers to assess our work with previous employers. That is, our work with another company is relevant to our prospective employment with a new one because it is likely to be predictive of our future work behaviour. So the question becomes: Is there a major difference between such pre-employment combing through of our past work conduct, and post-employment retroactive analysis? I think there is a distinction worth keeping in mind, but I’m not certain.

Consider the case of Bill Peters, the now former NHL hockey coach, who has been accused of (and admitted to) bombarding one of his ex-players (Akim Aliu) with racial slurs 10 years ago (in response to the player serenading the team dressing room with rap music). Peters was then coaching a different team, in a different league, than the one he was coaching when the allegation rose up into our consciousness. Upon receiving the charge, Peters’s team (the Calgary Flames) suspended Peters from duty stating that they needed to investigate the veracity of the complaints (with the assistance of the NHL).

Shortly after that first allegation, Peters was additionally accused by a former player (Michal Jordan) on his penultimate NHL team, the Carolina Hurricanes, of punching and kicking him and another player during a game. Peters hasn’t publicly admitted to this violence, but former players on the team as well Peters’s then-assistant coach (Rod Brind’Amour) and then-General Manager (Ron Francis) say that it happened, and that it was “handled directly” by the organization at the time (and both of these ex-colleagues say they are not aware of any other abusive events occurring after that).

Meanwhile, before Peters’s confession to the racist incident, the Calgary Flames acknowledged that, if true, such racist utterances were “repugnant,” but that they needed time to investigate. However, some in the pundit class—who are used to the efficient work of Cancel Culture—claimed to be befuddled that it was taking days to come to a conclusion on a matter that seemed so clear.

In fact, when the racist incident was still in that accusation phase, and Peters hadn’t yet conceded the point, TSN That’s Hockey pundits Frank Seravalli and Gino Reda merrily leapt to presumptions of Peters’s guilt by discussing how awful the incident must have been for Aliu. Yes, Misters Seravalli and Reda, of course being a victim of racism is dreadful (and, if the experience derailed Mr. Aliu’s career as he is arguing, then I think he should sue the culprit), but presumptions of guilt have been one of the great tools of racism, itself. So let’s not leap to judgment.

In response to such itchy trigger fingers, former lawyer, ex-NHL GM, and present-day pundit, Brian Burke, courageously defended the Flames for not pronouncing immediate judgment, and instead conducting an exhaustive investigation first.

“I think you’ve got to make sure that it happened. The allegations aren’t true until they’re proven. And I think the way Calgary has gone about it is very workmanlike, very businesslike. We’re going to find out if it’s true, ‘cause you’ve got to remember, first of all, a person who is accused of doing something wrong is innocent until proven guilty. So you’ve got to verify the accuracy of the allegation.”

I admire Burke for making such a sinful suggestion in our present day accusation-equals-presumption-of-guilt culture, and to its credit, the Cancel Culture has yet to come for Brian Burke Esquire.

Not long after that, before the Calgary Flames announced their official decision on Peters’s fate, the disgraced coach resigned his commission. To my appreciation, at the team press conference revealing this result, one courageous reporter, Jermain Franklin, risked his reputation to ask Flames’ General Manager Brad Treliving:

“Was there any possibility at the beginning of the week of Bill continuing on as the coach with sensitivity training, and whatever he needs to go through to make him a better person moving forward, and did that change as things continued to mount?”

The GM quickly retorted that he would not deal in hypotheticals, and that was an end to it.

I can understand why GM Treliving avoided this Catch 22 of a question; it is not obvious that it would have been legal to fire the coach for bad acts on another organization’s watch, but it is clear that there was no way the team could have kept the coach amidst public pressure—or at least pundit pressure—to the contrary. Thus, I think it is likely that the two sides reached a settlement that the coach would resign in exchange for some sort of consideration. In fact, when asked if Peters was retaining any salary after his resignation, GM Treliving declined to comment.

But, with Peters’ resignation, our question remains unanswered:

Is it ethical to fire an employee for bad conduct on another team’s watch that the employer has no evidence has returned under their purview?

To my sarcastic surprise, the majority of pundits that I encountered on this matter found that to be an easy one:

If true, these bad actions automatically oblige an employer to fire the employee no matter how much time has passed.

Indeed, seeing no reason to question the consequences of such a position, Hockey Night in Canada instead decided to lecture their audience with a new grand assumption—that Peters’ racist incident was evidence that hockey culture in general is a hive of scum and bigotry. To that virtuous end, the eloquent long-time HNIC host Ron MacLean led us in “#TheConversation” in which he and we were “to listen [and] to learn.”

MacLean explained:

“We’ll just sit and we’ll talk. And for most of us, we’ll actually learn.”

That is to say, those with race-based criticisms of hockey culture were to be treated with faith-based deference, while those who might be skeptical and/or on the wrong side of pigment (such as Ron, himself) were to listen and perhaps note—as Ron put it—their “white, male privilege.”

I would love to be on the virtuous side of this issue. But, in their zest for righteousness, many of these sure-headed pundits simplified the moral question at hand to its lowest common denunciator.

For instance, National Post columnist, Scott Stinson, argued against the inevitable defences that he imagined would try to rescue Bill Peters. Yet, the defences he invented for himself to take on were idiotic. For instance:

“What about [Peters’] freedom of speech?” Stinson claimed some would argue. To which he answered himself, “Sigh… free speech rights don’t extend to being able to say whatever you want in a professional setting without any consequences form your employer.”

Yes, that’s right, Mr. Stinson, you have brilliantly vanquished your imaginary enemy there. But, of course, no reasonable free speech advocate would actually claim that one’s right to freedom of expression in private and in public extends to one’s workplace where one has a multitude of limitations that don’t apply when one is off duty.

The true moral and legal dilemma provoked by this situation, Mr. Stinson, is whether an employer should be allowed to fire a person for remarks not said when at their workplace, but instead offered ten years before in the walls of a different employer (in a different country).

Once again, the answer isn’t obvious to me either, but we will not succeed in our pursuit of a solution if we simply take on easier questions than are at hand.

It seems likely to me that such these “fire first” pundits are trying very hard to make sure that everyone knows that they are personally opposed to racism (and, to a lesser extent, physical abuse), and so they have lost the ability to critically consider these issues out loud.

Indeed, it appears to me the hockey pundit class in general is unquestioning of the notion of retroactive punishment because they are afraid that such skepticism would make them appear unsympathetic to victims. Such fear is understandable given that our “social justice” mafia culture eats wrong-thinking talking heads for breakfast, and tends to require full obedience in their calls for cancellation.

There was, however, one pundit, Ashley Docking, who risked her career to take part in the following conversation with our friend, Brian Burke:

DOCKING: Do you feel that people should be held responsible for things that they did [in the past]…?

BURKE: Yes.

DOCKING: Is the problem for the Calgary Flames in your opinion, Brian, that they’re asked to potentially hand down a punishment for something that happened within a different organization?

BURKE: No, I don’t think that’s a risk at all. This conduct, this language is unacceptable in any timeframe, in any place… If they verify that these statements were made, this coach is in trouble. These values did not fit with… [Flames’ General Manager] Brad Treliving, they do not fit with Flames’ ownership, they do not fit with the NHL.

While I don’t question the sincerity of Burke’s response here (he is not a known virtue signaller), he has once again answered an easier question than the one that was asked. Yes, of course, racist remarks go against the values of the Calgary Flames (and every team in the NHL). And so, if Peters were found to have uttered racial slurs to his players on his current team, then I’d write the pink slip, myself. However, with the evaded question here, we are again reminded of the crux of this matter:

Do we want a society in which our current employers can retroactively study our past conduct with previous employers to determine that—although we have been good employees for them—our past sins make us unfit to continue our current contracts?

I am still not sure.

The axe ‘em if you got ‘em argument would be compelling to me if it were based on a concern that the formerly bad employee was likely to repeat their offences, but no such a case was made explicit by any of the pundits in this scandal. And I’m not sure if such an argument would be persuasive here given that there is no indication that Peters has continued either of his previous malpractices with his new employer. According to all sources, if Peters hadn’t been found out to have been a rotten actor in the past, the Flames would have merrily continued his employment (and would have instantly fired him had they learned from his players of any abuse today).

According to former NHL player and current Carolina Hurricanes’ coach, Rod Brind’Amour, the players know now that they can speak up if something unprofessional happens to them or around them:

“I think the players have way more power now, and they realize that. I think it’s important for them to speak out about whatever they think is important because the times have changed. They definitely have more power and they need to speak up.”

So, correct me if I’m wrong, pundit class, but it seems that the excommunication today of Peters for bad actions committed in the past is meant as a punishment for those previous sins. He was once guilty of racism, and therefore he is unfit to be employed today.

Again, this is a tempting conclusion, and even as I type these words, I want to join the ongoing condemnation. My concern, though, is with the notion that people who do bad things are to be forever discarded.

It is a thin line that I am attempting to traverse because, if the racist and violent incidents happened as described, Peters should have been fired immediately in both cases. Moreover, it would have been reasonable for a new team to resist hiring Peters on the grounds that his prior bad behaviours were likely to be predictive of future bad behaviours.

However, the distinction I see here is Mr. Peters somehow avoided dismissal on the occasions that he behaved badly. That was surely unjust at the time, but in essence—to paraphrase the philosopher Thomas Nagel—Peters was morally lucky. I think most of us can relate to catching such a moral break. That is, most of us have at some point in our lives made a moral error for which we were either not caught or not penalized as much as we could have been. Nevertheless, I’m not sure that such unpunished moral blunders should follow us for the rest of work our lives.

In contrast, had Peters rightfully received serious consequences for his lousy choices if and when they occurred, he could then have attempted to rebuild his humanity and reputation. But, when our bad deeds follow us into the future indefinitely (whether we received adequate reprisal for them or not), it seems to be assumed that we cannot learn and better ourselves into morally decent creatures.

Of course, some crimes—murder, rape, child abuse—should not be pampered with any statutes of limitations. Even though murderers, rapists, and child abusers may in theory be capable of turning over their giant leaves, their crimes are so harmful that we must protect society with an arm that reaches far into the future. The purposes, to my mind, of such unblinking justice are that

(A) even a tiny risk of recidivism is too high to justify second chances, and

(B) we must deter such crimes by letting any would-be participants know that, once they take part, the law will never stop searching for them.

So my question to all of us is this:

Are Mr. Peters’s alleged crimes of crop-dusting his hockey dressing room with a racial slur, and physically assaulting two of his hockey players so serious that they must follow his career indefinitely into the future, regardless of whether he has changed his bad ways?

Perhaps, the answer is Yes, and I can live with that. However, my concern is that these questions about retroactive justice do not seem to be considered in the public conversation whenever we discover bad deeds in a public figure’s past. In this case, the media covering this discussion almost entirely resisted noting a distinction between firing an employee for present day bad actions committed on their current job, and firing them for bad actions committed under previous employment. Former NHL star, current NBC broadcaster, and self-appointed racism-detection expert Anson Carter says:

“This is not a witch hunt. If you’re not doing anything wrong, you should have nothing to worry about.”

But once again the case of Bill Peters is not about him doing something wrong; it is about him having done things wrong many years ago. That may be a fine line, but if we erase it, we may all be in trouble.