Can employees resist woke indoctrination in their workplace without being penalised? A series of legal rulings in Britain suggests the answer now is “yes”. This could upend the entire edifice of compulsory critical theory-based diversity training, a hallmark of what Doug Stokes terms the “grievance-industrial complex”.
The concept of wokeness seems to sit at the heart of the present turbulence in our social, working and political lives. Even invoking the word “woke” is prone to induce strong, visceral reactions in those who have an interest in the ongoing culture war. We define it as the sacralisation of historically disadvantaged race, gender and sexual minority groups. From this, it follows that anything that can be interpreted as offending a hypothetically sensitive member of such a group, or opposing Diversity, Equity and Inclusion (DEI) policies designed to assist such groups, is an offence against the sacred — punishable by cancellation. Woke reinforces a left-wing ideology of cultural socialism, which demands equal results for identity groups as well as the need to protect them from even micro-emotional harms.
Would being anti-woke count as a protected philosophical belief?
Disagreeing publicly with the core precepts of cultural socialism can leave you facing social opprobrium and risking the loss of your employment. It is the third rail of our society, but the beliefs with which it is associated are deeply held and touch upon perhaps the most profound aspects of that society and human existence more generally. Most who oppose woke do so from the standpoint of cultural liberalism, elevating equal treatment, due process, free speech, conscience rights, and the pursuit of objective truth above equal outcomes and emotional safety. Cultural conservatives largely overlap with this position, but they tend to emphasise the importance of national and majority ethnic identities and symbols alongside traditional conceptions of the gender binary, family or forms of language.
In recognition of both those risks and that importance, cases are starting to be brought before the English employment tribunal that seek protection for speech and belief which might be described as “anti-woke”. The most high profile such case was that of Maya Forstater, who established that gender critical beliefs and an absence of a belief in gender identity are “protected philosophical beliefs” for the purposes of the Equality Act 2010. This meant that she could not be discriminated against for holding or (to a certain extent) manifesting them. Gender critical feminists are both cultural liberals (favouring free speech and objective truth) and cultural conservatives (privileging traditional understandings of gender and words such as “woman” or “mother”).
This trend continues. Take, for example, the recent case of Sean Corby. In a preliminary decision of the employment tribunal, he argued that his view that the woke or critical theory approach to racism, particularly structural racism, was misconceived. The cultural liberal approach of Martin Luther King, Jr — to judge on character and not skin colour — should be preferred. The tribunal unanimously held that his view that “the cause of racial equality is best advanced not through separatism and segregation but by valuing people based on character rather than race” did indeed qualify as a protected philosophical belief under the Equality Act 2010.
We therefore ask ourselves, how far — and how generally — might this trend continue? Would being anti-woke count as a protected philosophical belief? We think it would.
In interpreting what beliefs amount to protected philosophical beliefs, the relevant test is as follows:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Given the nature of the test, we need an appropriate test subject whose views — and their genuineness — are well known to us. Professor Kaufmann will serve well here.
Given the room for intense dispute over the meaning of wokeness and anti-wokeness, we need to offer a reasonably clear definition of the belief system which we say merits legal protection. We believe that an individual may hold a sincere philosophical belief in “cultural liberalism” (anti-wokeness) worthy of protection, as distinct from and inherently preferable to “cultural socialism” (wokeness). Professor Kaufmann actively holds a positive belief in “cultural liberalism”, and he lacks a belief in “cultural socialism”. As part of this, he believes in promoting and furthering “cultural liberalism” (and its constituent parts as set out below), and he actively believes in opposing “cultural socialism” (and its constituent parts as set out below).
To further explain what Professor Kaufmann believes in relation to these terms, “cultural liberalism” entails beliefs, amongst others, in the importance of:
- academic freedom, freedom of conscience and free expression (including academic free expression and the right to offend);
- due process and natural justice;
- not weaponizing identity categories (e.g. race, gender and sexual minorities) to silence speech as doing so is a grave threat to liberty and truth in academia and the world of ideas;
- equal treatment under the law (in the sense of a level playing field); and
- scientific rationality — including analytic logic, objective truth and empirical falsifiability.
“Cultural socialism” is generally characterised by some or all of the following beliefs, amongst others:
- the importance of equal (or more than equal) outcomes for historically disadvantaged identity groups (e.g. race, gender and sexual minorities) and the protection of such minority identity groups from psychological harm as its overriding values;
- the sacralisation of disadvantaged identity groups (in particular, race) such that the paramount value of equality of outcome and harm protection justifies the restriction of cultural liberal values such as free expression, academic freedom, equal treatment, due process and scientific rationality.
- the moralising of political questions, replacing debate over evidence, values and the nature of the Good with binary “right vs. wrong” moral norms;
- the centering of race, sexuality and gender such that unequal outcomes or claims of harm based on membership in historically marginalised racial, sexuality and gender identity groups are more important than claims based on other characteristics (psychological, philosophical, socioeconomic, not to mention membership in historically dominant racial or gender groups);
- subjective and lived experience is as, or more, important and valuable than testable and falsifiable externally-valid measures.
Applying each of the limbs of the legal test to the belief in “cultural liberalism”:
1. It cannot be reasonably disputed that Professor Kaufmann genuinely holds the belief and adheres to it. It is central to his scholarship, activity and way that he lives his life (both personally and professionally).
For example, it appears in his recent Manhattan Institute report on the politics of the culture wars (2022) and informs his three reports on academic freedom for Policy Exchange (2019, 2020) and CSPI (2021). It will also feature in his new book Taboo: How Making Race Sacred Produced a Cultural Revolution (Forum, May 2024).
He has also given several talks (mainly online) on this at, for instance, LSE, Cornell, the University of Texas, UC Berkeley, Oxford Brookes, UCL, Edinburgh and other places (including in an academic debate at the Cambridge Union).
His belief is also evidenced by his history of studying the cultural left, coining terms such as “left-modernism” and “asymmetrical multiculturalism” in his first book The Rise and Fall of Anglo-America (Harvard U Press, 2004) and returning to these in his 2018 book Whiteshift (Penguin).
He is also starting a new course, “Woke: the Origins, Dynamics and Implications of an Elite Ideology” and a new Centre for Heterodox Social Science in January 2024 in his new role at the University of Buckingham.
2. His belief is not an opinion or viewpoint based on information or lack of information available. It is a belief in a philosophy which underpins Professor Kaufmann’s worldview, and it is the basis for much of his scholarly output. The fact that it is possible to articulate the distinctiveness of competing approaches in the academy and generally (i.e. “cultural liberalism” vs. “cultural socialism”) as we do above highlights that both are wider and cohesive systems of thought and epistemology that transcend such mere opinions.
3. It is self-evident that his belief relates to a weighty and substantial aspect of human life and behaviour. Amongst other things, it addresses the fundamentals of the academy’s approach to scholarship and scientific enquiry.
4. The high level of cogency, seriousness, cohesion and importance of the belief is abundantly clear from the scholarly work, publications and talks that are referenced above. Professor Kaufmann is a serious, senior and widely respected scholar, and the belief is crucial to much of his recent academic work.
5. As clarified in Maya Forstater’s case, this is a low threshold. The only beliefs that would fail to satisfy it are beliefs that are excluded from the protection of the European Convention of Human Rights by Article 17, e.g. advocating Nazism. Beliefs that are offensive, shocking or disturbing are still generally protected.
A protected belief is important for guarding academic freedom
It is therefore clear to us that Professor Kaufmann’s belief in “cultural liberalism” is a protected philosophical belief for the purposes of the Equality Act 2010. We also believe that “cultural socialism” is (and each of its constituent parts are) capable of amounting to protected philosophical belief(s) which Kaufmann lacks. As such, he has a protected positive belief in what he terms “cultural liberalism” or anti-wokeness and a protected lack of belief in what he terms “cultural socialism”, which exhibits the key hallmarks of what is more commonly known as wokeness.
If Professor Kaufmann, in our thought experiment, is entitled to this protection, then there is no reason in principle why others will not be. Whilst others might not have the same background and work to point to, it must be remembered that the tribunal does not set the bar overly high in relation to many aspects of the above test. Indeed, provided the beliefs are genuinely held (limb 1), much of what can be said of limbs (2) to (5) are of more general application. This seems to be the case with how tribunals are accepting of the similarly cogent set of gender critical beliefs.
Aside from the general protection under the Equality Act for those who express anti-woke beliefs, the acceptance of the above as a protected belief is important for guarding academic freedom on campuses, where the culture war rages fiercely. Whilst the Government has introduced the new Higher Education (Freedom of Speech) Act 2023, it is not possible to bring a claim in the employment tribunal directly for a breach of any of its duties. This is a significant gap, given the complexity, expense and risk of bringing a claim for individuals in the courts.
Even with the enactment of the new law and its statutory tort, we would therefore expect most dismissed academics to continue to try to use the employment tribunal — probably in creative ways, weaving in the new duties to the extent possible, but without any guarantee of success — to seek justice. Our proposed protected belief would, in the right case, make this significantly more straightforward. If such a belief were to be recognised, we predict it would be as impactful for academics generally as Maya Forstater’s case was for gender critical feminists.
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