Commentary: Jeffrey Toobin Ain’t A Labor Rights Martyr

by Bryan Conlon and Douglas Williams

From the Things We Never Thought We Would Have To Spell Out Explicitly case file, it is absolutely unacceptable to engage in sexual acts—either as a one-person stageplay or as part of an ensemble cast—in the workplace.

This extremely obvious rule is, apparently, something that Harvard Law School didn’t cover when Jeffrey Toobin attended from 1983 to 1986. While on a Zoom call with other media commentators to game out the coming election in November, Toobin decided to engage in an extremely inappropriate act of self-stimulation while on camera. Toobin, who is a legal analyst for CNN and The New Yorker, has taken a leave of absence and been suspended from each of those outlets respectively in the wake of this story breaking.

If you spend enough time in the labor movement, you will hear stories from union stewards of people using work computers to watch pornography, or who accidentally display pornography they had open on their computers during a presentation, or who engage in sexual acts at their workplaces. Many of us know someone who has been punished—if not outright terminated—for inappropriate sexual behavior on the job. We may have even had to represent them during those terminations, or help union members who are the targets of such misbehavior seek redress for the harms done to them. Toobin’s punishment might make sense in that context, given the nature of his workplace offense. Hell, it might even seem mild considering the magnitude of his misbehavior and the fact that he has a track record of creepy and harassing behavior, aggravating an already-egregious set of circumstances.

But for a surprising number of people in the media, sense seemed to evacuate from their minds right as the public began to process the story. There seems to be two primary kinds of contrarian views on Toobin’s behavior. The first type is best represented by these (now-deleted) tweets from a Vox journalist who had initially opposed the WGA-East unionization drive, or this tweet from a staff writer at The Atlantic. It is a reflexive defense of someone with power and prominence facing the consequences of his actions, and it ignores what is happening to people in the media who do not have the power and prestige of someone like Jeff Toobin.

The second sort of contrarian perspective raises concerns that deserve actual scrutiny and is best exemplified by this tweet from Natalie Shure. Toobin was not just in the privacy of his home, but on a call doing work he was presumably being paid for. He did not just stand up while his pants were unbuttoned or accidentally flashed the camera while he was drying off from a shower, but rather exposed himself to people he was working with. Even if this incident was an accident on his part and he never intended to expose himself in such an egregious fashion, Toobin’s behavior was recklessly disrespectful to the people he works with. Toobin did not get busted for private things he did on the clock. The whole problem with his behavior is that he didn’t keep it private at all.

That being said, Shure raises something substantive: COVID has upended the nature of work for a lot of people. Telework, already a growing trend in the “knowledge” industries and in parts of the government, has exploded in popularity as the need to keep distance to prevent a lethally debilitating plague from spreading became overwhelming. As companies transitioned to telework, many bosses sought intrusive access and oversight over their employees who were working from home for the first time. There are serious concerns about bosses trying to use this moment to tighten their grip over the lives of the people working for them, and in unionized workplaces with people teleworking, these concerns are addressed in union contracts. Unfortunately, there are far fewer of those than there should be, and many workers are having to deal with their bosses intruding into their living spaces.

But the context matters. Were this a case of an employer attempting to punish one of their teleworking employees for returning from lunch at a more leisurely pace than management would like or a manager not liking the attire of an employee working in their pajamas during a Zoom call, then we should absolutely be concerned about how this transformation in work impedes one's personal space and private proclivities. That, however, is not what happened here. Say that, instead of on a Zoom call, this had happened in an office, or at a school, or on a shop floor. What would have happened if two people walked into a conference room to see someone engaging in the behaviors ascribed to Toobin? The answer to this question is obvious, and the teleworking aspect of this story occludes that reality.

At the end of the day, Jeffrey Toobin will still be a well-connected and sought-after legal expert, as well as a best-selling author. Comparing the discomfort and ridicule that he is facing at this moment to the real labor-management struggles faced by rank-and-file workers and their unions is, at best, out of touch. The larger issues created by the massive expansion of telework caused by COVID raises a whole series of questions and challenges about the nature of white collar work that unions will be navigating for quite some time.

We should seek to do justice to the discussion by making sure we focus on those questions instead of fixating on a certain legal analyst’s unacceptable behavior.

Bryan Conlon is a National Organizer for AFGE in Raleigh, North Carolina.

Douglas Williams is a third-generation organizer originally from Suffolk, VA. He is a PhD candidate at Wayne State University and works as a labor educator.