Companies are increasingly worried about what their employees say

LAST DECEMBER a British employment tribunal ruled that the Centre for Global Development, a think-tank, had acted legally when it did not renew Maya Forstater’s contract because she had tweeted that a person’s biological sex is immutable. Ms Forstater, a researcher, had tweeted several messages critical of the idea that natal males can become women. She did so from her personal account but listed her employer in her Twitter profile. After colleagues complained to the human-resources department about her conduct online, she was asked to add the disclaimer “views are my own”. She did so. According to her employer, co-workers objected to her posting a picture of herself at a protest with a banner that said “Woman, noun, adult human female”.

Trans-rights activists cheered, and women’s-rights and free-speech advocates were horrified, because a precedent had been set. In court, Ms Forstater had argued that her conviction that men cannot become women should be protected in the same way as a religious belief would be. The judge disagreed, ruling that her “gender-critical” views were “not worthy of respect in a democratic society,” and did not qualify for protection.

By contrast, another British tribunal ruled in January that ethical veganism did. Jordi Casamitjana was dismissed from the League Against Cruel Sports, an animal-welfare charity, after disclosing that its pension fund invested in companies involved in animal testing. Mr Casamitjana is appealing against his sacking. He says that he was fired because he is a vegan on ethical grounds. If he proved that to be the case, his firing would be discriminatory. His employer says he was fired for gross misconduct and that his beliefs were irrelevant.

A confluence of technological and cultural change has made such cases almost inevitable. Thanks to Twitter and other social networks, employees have many more opportunities to broadcast their opinions; off-colour comments that would once have been uttered in a bar now ricochet around the world. Companies that strive to demonstrate their progressive character are likely to find that troublesome.

Meanwhile, the nature of belief has changed. People in rich countries are less likely to say that they belong to a church. Even in America, which is more pious than most, the proportion of people who say they have no religious affiliation has climbed from just 6% in the early 1970s to 22%, according to the Pew Research Centre. Among millennials, who represent more than a third of the workforce, the proportion is twice as high. Yet the hole left by the decline of organised religion has been filled by a diversity of other beliefs, held just as fervently. Companies and courts must grapple with the question: how far should laws written to protect employees against discrimination on religious grounds be applied to those beliefs, too?

The case law on religious discrimination is well established. Legal judgments about job requirements often turn on the question of whether an employer could have made a reasonable adjustment to accommodate a person’s religious beliefs. A school in Denmark that fired a Jehovah’s Witness in 2018 who refused to dance around a Christmas tree was found guilty of unlawful discrimination because it could easily have accommodated such wishes. But in 1994 a Dutch casino was allowed to sack a Christian croupier who refused to take customers’ cash because doing so was an essential part of the job.

Many Western countries also ban discrimination on the basis of “belief”, though none defines the term clearly. Increasingly, non-religious workers want similar protections to those afforded to religious groups, says Peter Daly, an employment lawyer involved in the cases of both Ms Forstater and Mr Casamitjana. British courts are leading in this area.

The bar for beliefs to qualify for protection was lowered in 2006 when Britain removed the requirement for such beliefs to be “similar” to religious ones. Then, in 2009, a tribunal ruled that Tim Nicholson’s belief in man-made climate change was akin to a religious conviction and should enjoy the same protections.

Mr Nicholson had been head of sustainability at Grainger PLC, a property-investment firm, until he was made redundant. Grainger claimed this was a result of changing staffing needs. Mr Nicholson argued that his redundancy was the result of his environmental beliefs: he often urged executives to improve their green credentials. The firm’s lawyer claimed that Mr Nicholson’s views were opinions, as opposed to beliefs that enjoyed special protections. But the fact that his daily life was guided by his convictions, influencing how he travelled and lived, helped convince a judge that his was a belief worthy of protection, a decision that has been influential in much of Europe.

The ruling set five criteria for a protected belief. It must be genuinely held; be more than an opinion or viewpoint based on the present state of information available; be a weighty and substantial part of life; attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society and compatible with human dignity and the rights of others. The last criterion was set explicitly narrowly to rule out particular noxious beliefs. White Supremacy has failed on that test.

Over the past decade European tribunals have concluded that various non-religious beliefs clear the bar. Anthroposophy, opposition to hunting, Darwinism, faith in the “higher purpose of public broadcast journalism” and ethical veganism have been ruled in. Being sympathetic to China, disliking asylum-seekers and the conviction that 9/11 and 7/7 were “false flag” operations have been ruled out. On vegetarianism and Marxism countries disagree.

It is illegal in most European countries, particularly former communist ones, and some American states, to fire someone for their political beliefs. Several Silicon Valley employees have used such laws in California to argue that they were fired for being conservatives. But most Americans enjoy no protection of their political beliefs at work. In 2004 a woman in Alabama was legally fired from a housing-insulation company for having a John Kerry bumper sticker on her car. In December a man playing Father Christmas at a mall in Georgia was replaced after photos emerged online of him wearing a pro-President Trump baseball cap while on duty (he claims it was a joke). Christopher Olmsted, an employment lawyer in California, expects political disputes on the workfloor to heat up as elections approach later this year.

Employers say they need to restrict the expression of certain views in order to create inclusive workplaces. Consider the sacking of James Damore, a Google engineer, in 2017 after he penned the “Google Memo”, which argued that women were biologically less suited to tech jobs. Diversity officers at many firms protested, arguing that firing someone with views that are different from the norm was the opposite of inclusivity. Human-resources and employment lawyers defended the dismissal as the only way to protect employees from hostility and the company from litigation—and bad press.

But firms are increasingly concerned about what their employees say and write outside the office. In 2018 a film director was fired by Disney for tweets in which he joked about rape, sent years before the company hired him. In 2019 a “greeter” for ASDA, a supermarket, was dismissed for Islamophobia after sharing a Billy Connolly video on Facebook (a comedian whose work is sold by ASDA). Both have since been reinstated, but only after hassle, and “all because their employers had a panic attack over what was happening on social media,” says Jodie Ginsberg, the outgoing CEO of Index on Censorship, a charity. Pascal Besselink, a Dutch employment lawyer, estimates that about one in ten on-the-spot firings in the Netherlands are now related to social media. Few have garnered much attention because companies tend to settle disputes quietly. Even when firms are in the right they prefer to stay out of the limelight, so will buy off fired employees in exchange for their silence.

The courts are puzzling their way through such cases. Last August the Australian High Court upheld a decision by the Department of Immigration to fire a public servant who had sent thousands of anonymous tweets critical of her employer. More complex are firings over posts that are unrelated to work but which are deemed to bring an employer into disrepute.

Employee activism can be particularly tricky. Amazon employees recently claimed to have been threatened with dismissal for criticising the firm’s climate policies to journalists. Google has been accused of trying to silence dissenting voices, including those that criticised the firm’s response to sexual harassment and its secretive work in China. The firm denies any claims of retaliation, which would be unlawful, but does not dispute that it has reduced the frequency and changed the scope of its “Thank God It’s Friday” town halls, once a celebration of free speech.

Loose lips bring pink slips

To forestall conflicts, firms are moving to spell out their expectations in codes of conduct and social-media policies. The level of detail varies. Intel simply asks employees to “use common sense”. General Motors’ 12-page social-media policy includes a reminder that “your online communications will not be excused merely because they occurred outside of work hours or off GM premises.” There are few limits to what an employer can demand in its terms of employment, says James Laddie, a barrister. But social-media use is now so widespread that extreme restrictions, such as blanket bans on Twitter, are no longer realistic. “It’s yet to be tested what view a tribunal would take on someone fired for refusing to abide by such a ban. They may well say ‘we don’t care what your T&C restricts’, it’s not fair to dismiss someone for speaking their mind.”

In the midst of all these prescriptions, Pam Jeffords of PwC wonders whether companies might more usefully replace demands for “respect” with requests for “civility” in employment conditions. “It’s not realistic to demand I respect someone who believes women don’t have a right to drive,” she says, “but it’s reasonable to ask me to be civil.”

The workplace is where most discrimination disputes emerge. It is where people are most likely to spend time with those with whom they fundamentally disagree. Most employers simply want a pragmatic approach to regulating speech at work that allows people to get on with their jobs while avoiding both the courts and the media. That is easier said than done.

This article appeared in the International section of the print edition under the headline “None of your business”

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Experts predict that covid-19 will spread more widely

“THERE ARE so many crises in Congo.” Gervais Folefack, who co-ordinates the emergency programmes run by the World Health Organisation (WHO) in the Democratic Republic of Congo, has mastered the art of the understatement. The country has been shattered by war and corruption. “All the time we are responding to crises,” says Dr Folefack. He lists the most recent: Ebola, measles, cholera. To them, he may well have to add covid-19, a respiratory disease that originated in China. Those who would need to respond to a surge in covid-19 cases are already busy with the Ebola outbreak that began in 2018. “We are trying to prepare,” continues Dr Folefack, but there is simply not enough time.

So far 99% of confirmed cases of the new coronavirus have been in China. Of the 1,000-odd cases outside mainland China, more than half have been on the Diamond Princess, a cruise ship docked in Japan; the rest are scattered among 27 countries, mostly in Asia. Covid-19 has spread rapidly in China despite the government locking down entire cities for weeks. China’s efforts, along with the travel restrictions that many countries have imposed on its citizens, have slowed the virus’s progress. But many experts fear that it will inevitably become a pandemic. Health authorities are frantically trying to prepare.

On February 12th Nancy Messonnier of America’s Centres for Disease Control and Prevention (CDC) said America should be prepared for the virus “to gain a foothold” in the country. Doctors in South Africa are on high alert, says Cheryl Cohen of the National Institute for Communicable Diseases. More than 850 medics in all nine of the country’s provinces have been taught to spot the disease. The WHO is sending surgical masks, gowns and gloves to hospitals in more than 50 countries. It is teaching health workers across Africa how to use them to prevent covid-19 infections—and how to treat those who have the disease.

Growing numbers of countries are screening passengers at airports and borders for signs of covid-19. But when a virus starts travelling around the world, says Michael Ryan of the WHO, its real point of entry is a busy emergency room or a doctor’s surgery. In the 2003 outbreak of SARS (severe acute respiratory syndrome), another coronavirus which spread to more than 20 countries, about 30% of the 8,000 people infected were health-care workers. Many, if not most, of the SARS outbreaks around the world—from Toronto to Singapore— started in a hospital with a single patient who had been infected abroad.

In countries where covid-19 cases are still rare doctors are, for now, trying to identify suspected patients by asking those with a cough and fever about recent travel to countries with outbreaks of the disease and then testing them. In America if patients test negative for seasonal flu, laboratories are starting to test for covid-19 (the country has so far identified 29 cases).

Confirming a suspected infection in a laboratory can take days. Some small European countries have just one or two laboratories able to process covid-19 tests. Europe’s entire supply of test kits is shipped from the two main laboratories of the European Centre for Disease Prevention and Control (ECDC), the EU’s public-health agency. America’s supply all comes from the CDC in Atlanta. It will be several months before commercial tests are available.

Tests could soon run short if other countries experience covid-19 epidemics like China’s. Delays in getting the results would increase. A lab technician must first prepare the samples. After that, processing each test through a molecular-analysis machine can take an hour and a half. These machines also run tests for the seasonal flu and other diseases. A covid-19 epidemic in the middle of winter—peak season for the common flu—would quickly overwhelm laboratories in most countries. Rapid diagnostic tests for the new virus that are as quick to carry out in doctors’ offices as pregnancy tests were at the top of the wishlist at a WHO meeting about research priorities for covid-19 in February.

Once an epidemic is in full swing, extensive testing to find everyone who might have the disease is less useful, says John Hick, an emergency co-ordinator at the Hennepin County Medical Centre in Minneapolis. At that point, he says, doctors will start to diagnose probable cases by symptoms alone—which is common practice for many illnesses, including the flu. Medics in parts of China are already doing this.

As with other contagious diseases, covid-19 patients in hospitals must be isolated to prevent its spread. When patients become too numerous to contain in isolation rooms, shared rooms, wings or entire floors may be set aside for covid-19 patients only. The Vrije University hospital in Amsterdam has dusted off its plans for doing this, including where to put “do not cross” lines to separate such sections, says Rosa van Mansfeld, who oversees infection prevention there. When all Dutch hospitals are overwhelmed, the lights will be turned on at the country’s “calamity hospital”, a fully equipped facility in Utrecht that is otherwise shut (it last opened to care for the victims of a terrorist shooting in 2019). In Kinshasa, Congo’s capital, an empty Ebola treatment centre will be used when covid-19 cases are identified.

Dr Hick says the biggest challenge if the disease starts to circulate widely in Minneapolis will be staffing. With no vaccine to protect them, many doctors and nurses will be infected. Others will need to stay at home to look after their children because schools may be closed. In its disaster planning, the hospital where Dr Hick works considered offering child care on-site for its staff. But he admits that people may be reluctant to bring their offspring to a hospital during an epidemic.

Hospitals will encourage people who do not seem to be seriously ill to stay away, as they do during the peak of seasonal flu. In part, that is to prevent them from straining the capacity of hospitals that are already overwhelmed. Doctors have no treatment to offer those with mild symptoms but in a hospital they can infect other patients or medics. Such people will be advised to isolate themselves at home. Others with mild symptoms may in fact have a different bug—but if they flock to hospitals, they may contract covid-19 for real.

Hospitals in both rich and poor countries are worried that in the event of an epidemic they will quickly run out of masks, gowns and gloves. Guidelines by the ECDC say that 24 disposable sets per day may be needed for a covid-19 patient in an intensive-care unit. The WHO says that a global shortage is already occurring, with a 20-fold rise in prices for some types of equipment. Surging demand in Asia, stockpiling by hospitals and disrupted production in China have all contributed to shortages of surgical masks.

Some hospitals are trying to conserve supplies. Dr van Mansfeld says that nurses in her hospital in Amsterdam are being reminded not to use the high-protection respirator masks if they are caring for patients for whom the guidelines say ordinary surgical masks suffice. At some point, says Dr Hick, medics may have to start reusing respirator masks judiciously. Instead of throwing them away after each patient, they could remove them, handling them particularly carefully so that any germs on the outer surfaces are not transferred to their mouths or noses, and re-use them.

The swine-flu pandemic, which was caused by the H1N1 virus and infected 16% of the world’s population in 2009, brought home the message that doctors would have to make such tough decisions when big epidemics strike, says Dan Hanfling of In-Q-Tel, an American organisation that invests in national-security technology. Between the first and the second wave of H1N1 infections in America, the country’s National Academies of Sciences developed a set of “crisis standards of care”. These specify what doctors should do as shortages of medical supplies become worse.

One course of action is to substitute treatments with near-equivalents, such as drugs that have a similar effect. Another is to adapt what is available for different uses. For example, simpler breathing machines from ambulances may be used as substitutes for the sophisticated machines in intensive-care units. Medics may have to clean and re-use equipment, such as catheters, rather than throw it away after each use (as doctors in poor countries do every day, Dr Hanfling points out).

The hardest decisions would come when all these options are exhausted. Few countries have discussed how doctors would choose which patients get ventilators when there are not enough for everyone who needs one. If doctors have one patient who is on a ventilator but clearly getting worse, and another who is healthier and more likely to survive, they can justify reallocating the ventilator to the second patient. But such decisions would be particularly hard to make with covid-19, based on what doctors already know about the disease. A patient may be on a ventilator for several weeks and show little improvement but still make a good recovery.

Be prepared

America is ahead of most countries in planning for such things, says Dr Hanfling. Disasters such as Hurricane Katrina—when many patients died in hospitals that were unprepared for disaster—laid bare the need to prepare for the worst. Each year the federal government gives states and hospitals about $1bn specifically for disaster preparedness. That is more than the national health budget of many African countries. Other countries’ recent experience may help them. Kerala, the only state in India to have confirmed cases of covid-19, swiftly contained an outbreak of Nipah, a nasty virus, in 2018 and has since bolstered its health system. Uganda has held back the spread of Ebola from next-door Congo and in the process built up stocks of protective clothing for health-care workers.

But poor countries would be hit particularly hard by outbreaks of covid-19. Uganda is used to dealing with diseases transmitted through blood, mosquitoes or parasites. Covid-19, if it comes, could spread quickly and unpredictably, which would test a cash-strapped health-care system. Ian Clarke, chair of a private health federation based in Uganda, worries that the mortality rates could be higher in Africa than they are in China because many people already have weakened immune systems as a result of HIV or poor nutrition. SARS mostly skipped Africa; the continent may not be so lucky with the new virus.

Correction (February 20th): An earlier version of this article misstated the name of Ms. Messonnier. Sorry.

Read more of our coverage of the covid-19 outbreak:

In China, newly confirmed cases of coronavirus infection are falling (February 20th)
Covid-19 presents economic policymakers with a new sort of threat (February 20th)
How China’s coronavirus epidemic could hurt the world economy (February 13th)

This article appeared in the International section of the print edition under the headline “Watchful waiting”

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The new coronavirus could have a lasting impact on global supply chains

TO GLIMPSE THE impact of the new coronavirus on global businesses, consider Apple. Such is the American tech titan’s reliance on the Chinese mainland for parts and assembly that United Airlines typically shuttles some 50 of its executives between California and China each day. But not at the moment. United and other carriers have suspended flights to and from China. A lack of workers meant that after the end of the lunar new-year holiday Foxconn, which makes most of Apple’s iPhones in China, could not get its assembly plants back to full capacity this week. Analysts reckon that the virus could lead to Apple shipping 5-10% fewer iPhones this quarter and could scupper its plans to ramp up production of its popular AirPods.

As covid-19 spreads, its effect on business is amplified. Tourism into and out of the mainland has plunged. Some 400,000 Chinese tourists are forecast to cancel trips to Japan by the end of March. One large cruise ship in Asia was turned away by five countries because of fears that those on board were infected (Cambodia at last allowed it to dock). The Singapore Air Show earned the city-state some $250m in 2018, but far less this week owing to cancellations by 70 companies including Lockheed Martin, an American defence giant. The Mobile World Congress, a giant telecoms conference due to take place in Barcelona this month, has been cancelled after companies from Vodafone and BT to Facebook and Amazon pulled out. It is increasingly clear that the virus could damage global supply chains, costing the world’s economy dearly.

Most multinational firms have been caught by surprise. This is not the first time they have suffered shocks to their Asian supply chains. The tsunami that hit Japan in 2011 and devastating floods in Thailand the same year disrupted production for many big firms. More recently, Donald Trump’s trade war with China has exposed the risks of supply chains that rely too heavily on the mainland. But the bosses of such businesses have done little to prepare for shocks such as that inflicted by the outbreak of the new coronavirus.

Investors are punishing companies for this failure. The shares of American firms with strong exposure to China have underperformed the S&P500 index by 5% since early January, when news of the outbreak first broke (see chart).

There are three reasons to think the coming months could prove even more unpleasant for many firms. First, big multinationals have left themselves dangerously exposed to supply-chain risk owing to strategies designed to bring down their costs. For example, many keep only enough stock on hand to last a few weeks, confident that they can always replenish their inventories “just in time”. That confidence is misplaced, argues Bindiya Vakil of Resilinc, a consultancy.

The second vulnerability arises from the fact that giant firms are much more reliant on Chinese factories today than they were at the time of the SARS outbreak in 2003. China now accounts for 16% of global GDP, up from 4% back then. Its share of all exports in textiles and apparel is now 40% of the global total. It generates 26% of the world’s furniture exports. It is also a voracious consumer of things such as metals, needed in manufacturing. In 2003 China sucked in 7% of global mining imports. Today it claims closer to a fifth.

Koray Köse of Gartner, a research firm, points out that it is not only the increase in size of China’s manufacturing base that matters. Since 2003 factories have spread from the coast to poorer interior regions like Wuhan, where the epidemic broke out. Workers from such places now toil at factories all over China—and travel home for the holidays. That interconnectedness increases supply-chain risks, argues Mr Köse. So does the rising interdependence of many firms. Mainland suppliers no longer simply assemble products; they make many of the parts that go into them as well.

The third reason to think that big companies may experience a supply-chain shock is that the regions worst affected by covid-19 and the subsequent government lockdowns are particularly important to several global industries. The electronics industry is most at risk, according to Llamasoft, a supply-chain analytics firm, because of its relatively thin inventories and its lack of alternative sources for parts.

Hubei province, where Wuhan is located, is the heart of China’s “optics valley”, home to many firms making components essential for telecoms networks. Perhaps a quarter of the world’s optical-fibre cables and devices are made there. One of China’s most advanced chip-fabrication plants, which makes the flash memory used in smartphones, is found there, too. Analysts worry that the epidemic in Hubei could reduce global shipments of smartphones by as much as 10% this year.

The car industry has also been hit. The lack of parts from mainland-based suppliers forced Hyundai to shut all its car plants in South Korea (it is now partially reopening them). Nissan has temporarily closed one in Japan, and Fiat-Chrysler has warned that it could soon halt production at one of its European factories.

Fears of the virus are now affecting the global oil price. Chinese refiners are slashing output in anticipation of shrinking demand at home. Slowing Chinese demand is further darkening what was already a dismal outlook for natural gas. Chinese copper buyers have asked Chilean and Nigerian mining firms to delay or cancel shipments. Mongolia has suspended deliveries of coal to China.

Some Chinese firms are panicking. Dozens have received official “force majeure certificates”, which they hope will allow them to slip out of contracts without incurring penalties. They may not. Faced with faltering demand as well as closed ports and roads, CNOOC, a Chinese energy giant, recently used such tactics to avoid accepting LNG shipments. Total and Royal Dutch Shell, European oil majors, are rejecting the move.

What happens next? Big firms want to ramp up production quickly. But it is unclear how soon workers will be allowed to return to factories. However, factory dormitories are crowded. Foxconn’s workers are packed eight to a room at its Shenzhen plant. If that leads to renewed infections plants may be forced to shut down again. Senior bosses will return soon, but some worry that mid-level expatriate managers with young children will not.

Even when plants are up and running, moving goods around and out of China will remain difficult. Alan Cheung of Kerry Logistics, a big provider in Asia, reports that his drivers are getting stopped across the mainland because the Chinese government is still trying to prevent lorries moving around unless they are delivering food or other necessities. The longer shipping volumes are depressed, the bigger the backlog when China Inc returns to work. That will probably lead to bottlenecks and a surge in freight rates.

In the longer term the epidemic could dampen the love affair between multinationals and China. Big companies had long assumed that their mainland supply chains were reliable and easy to manage. Surveys have found that only a minority of firms across all industries regularly assess their supply-chain risks carefully. For years bosses have devolved responsibility for sourcing to mid-level managers, typically instructed to extract an extra percent or two from costs each year. The covid-19 outbreak has exposed the risks of doing so, especially since America’s trade war with China is not exactly resolved. Tsunamis and floods came and went and firms simply thought they could manage, says Jochen Siebert of JSC Automotive, a consultancy. He predicts that the epidemic will put the question of supply-chain management squarely on the desks of their CEOs.

Correction (February 18th): This article originally said that a cruise ship was turned away from five countries because scores on board were infected with the new coronavirus. In fact, at that point, no one on board had been found to be infected.

This article appeared in the International section of the print edition under the headline “A deadly disease disrupts”

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