Amazon and the Limits of Consent


Back in law school, I spent a semester doing research for a professor who was studying the defense of consent in intentional torts. Many intentional torts involve violence and bodily injury, like starting a bar fight and breaking the plaintiff’s nose with a sucker punch. But if the plaintiff consented to the violence, like getting punched in a boxing match, then their consent is a defense to a tort claim.

The “bar fight versus boxing match” comparison is the textbook example, but this professor and I were looking at the more exotic cases. Specifically, we spent a lot of time looking at people with body integrity identity disorder (BIID). Individuals suffering from BIID desire to live as amputees and will sometimes seek the amputation of a healthy limb in order to achieve their goal. In some cases where doctors have refused their request, they will find a non-professional who is willing to amputate their limb for pay or personal reasons. That individual may become the defendant in a tort action, and they often argue that the plaintiff’s consent shields them from liability.

Scholars are split on whether the consent defense should be effective under such circumstances. Some reason that anyone who would consent to the amputation of a healthy limb must lack the mental capacity for the consent to be genuine. Others reject this reasoning as tautological and argue that the defense should be allowed. Finally, some acknowledge the logic of consent while appealing to some higher standard such as “inherent dignity” to overrule the defense and impose liability.

The takeaway is that there are some patterns of behavior that, though apparently voluntary, violate our moral intuitions to such a degree that many people look for loopholes in a consent defense or else argue that consent itself is a flawed basis on which to justify the behavior. Which brings us to Amazon.

Recently, the New York Times published an exposé on Amazon’s corporate culture as experienced by white-collar employees. The article is built around anecdotes from current and former employees that describe the company’s “purposeful Darwinism.” Amazon recruits large numbers of talented employees then winnows them down to the best of the best by holding them to “unreasonably high” standards and pitting them against each other. One former employee says, “Nearly every person I worked with, I saw cry at their desk.”

Many aspects of the work environment described—80-hour weeks, 24-hour expected availability, fear of taking time off for family emergencies, much less vacation—could apply not just to Amazon or even the tech sector but to a wide array of prestigious white-collar jobs like investment banking, consulting, medicine, or Biglaw. No wonder the article struck a nerve with the Times’ predominantly upper-middle-class readership who either face the kind of pressures they are hearing described or are anxious that they soon might (or—having chosen some less punishing but also less prestigious occupation—are comforted in their status anxiety by tales of woe from down the road not taken).

Ezra Klein noted this reason for the article’s impact in his own explainer that compared the Times’ reporting with a rebuttal from current “Amazonian” Nick Ciubotariu. Klein writes that the Amazon article had such instant impact because it speaks “to an anxiety that America’s most privileged workers share: that their family and career ambitions are, on some level, locked in a zero-sum competition.” But ultimately, Klein isn’t particularly sympathetic to this anxiety: “as bad as things might be for Amazon’s white-collar workers, the truth is they’ve chosen to be at Amazon, and they have the power—through their attractiveness to other employers—to negotiate better working conditions.” In other words, whatever Amazon does to its workers, it does with their consent.

This is precisely the line taken by Nick Ciubotariu in his rebuttal. He writes, “During my 18 months at Amazon, I’ve never worked a single weekend when I didn’t want to. No one tells me to work nights. No one makes me answer emails at night.” As Klein points out, Ciubotariu is hardly saying that he doesn’t work nights or weekends. So long as his overwork is voluntary, Amazon has done nothing wrong by receiving it. Moreover, Ciubotariu suggests that there may be no such thing as overwork, strictly speaking—that there is no objective standard of reasonableness—and his consent is the only limit on what his employer can justly ask from him.

Of course, on some level the question becomes whether the happy Amazonians and their apologists are sensible of the harm suffered by white-collar workers under the conditions described. Certainly, Klein’s ready acquiescence to the consent defense indicates that he does not find their situation as unenviable as that of the common warehouse worker. As he writes, “The real workplace scandal at Amazon — and in the economy writ large — isn’t the treatment of white-collar workers with plenty of options. It’s the treatment of blue-collar workers with none.” Warehouse employees routinely work at the same frantic pace as their counterparts in management but in 100-degree heat and at far lower wages. In this situation, Klein is inclined to look for a loophole. After all, isn’t a blue-collar worker just as capable of consenting to apparently oppressive conditions as a white-collar worker?

Klein thinks not. Low-skilled workers have fewer career choices, and all of them are awful. Therefore, they lack the capacity for meaningful consent. In essence, they are compelled to work under terrible conditions for Amazon or some other company that would treat them about the same.

On the other hand, one can appreciate that there is a difference in absolute terms between the opportunities and bargaining power available to white-collar versus blue-collar workers without drawing the conclusion that either group is being treated fairly. The lesser of two evils may yet be quite evil. After all, what options do the white-collar workers actually have? True, they can move to another firm that might ask less from them. But if Amazon’s “purposeful Darwinism” truly does give the company a competitive advantage, then in due time, any business that uses white-collar labor will either adopt similar practices or risk being put out of business by those that do. What then? I guess they can always go work in a warehouse somewhere.

The underlying problem is that the picture of autonomous individuals freely consenting to this or that state of affairs is mostly fiction. We see evidence of its conceptual thinness in the inconsistent manner in which it is deployed and scrutinized. The fact is that people are subject to countless influences and biases, many of which are purposefully cultivated in order to generate particular kinds of consent.

Consider one frankly bizarre passage from Ciubotariu’s response. He quotes from the Times article, which stated that new hire orientation included a mandatory quiz on Amazon’s leadership principles, and writes:

This is complete and utter reader bait. No one is “quizzed”- the quiz is totally, 100% voluntary – for that matter, no one will mention it again, aside from New Hire Orientation – and you’re told during orientation that it’s an easy way to get your first phone tool icon (some people go as far as collecting these icons). For some, it’s a fun practice. I didn’t take the quiz for 3 weeks, and I admit it’s because I was new and I wanted a phone tool icon.

Now, I don’t know exactly what a “phone tool icon” is, but from the context, I’m assuming (and anyone with superior Googling skills is welcome to correct me on this point) it has no economic value—the equivalent of a gold star from your piano tutor. But Amazon has used a worthless digital trinket to extract labor in the form of time, attention, and performance. And it has done so, because Ciubotariu and his peers have been conditioned to collect such participation trophies—their consent has been manufactured.

In the context of consumer capitalism, this analysis could be extended endlessly. Daniel Bell provides much analysis along those lines in The Economy of Desire (which I previously reviewed for Fare Forward). Once we have achieved the standard of living available even to the warehouse worker in contemporary America, the rewards of more and “better” work go disproportionately to status competition. What’s a luxury brand if not a gold star for grown-ups? From a materialist perspective, it may be gold stars all the way down.

But if we are going to critique the manufacturing of consent and the imposition of ever greater demands on those who lack the capacity to freely consent, we will have to look beyond consent for a higher standard. Like the volunteer amputee suffering from BIID, we need to recognize that the happy Amazonian toiling for material (and even immaterial) rewards to their spiritual detriment is likewise operating under a false consciousness. And we cannot make excuses for people or systems that exploit that delusion. Our responsibility is to point beyond consent to a standard of human dignity and true freedom grounded in the image of God.

Charlie Clark

Charlie Clark lives in his hometown of Murfreesboro, Tennessee with his wife Sarah. An alumnus of Dartmouth College and the University of Tennessee College of Law, he works in his family’s fourth-generation scrap metal recycling business. Charlie is a founding editor of Fare Forward and chairman of its board of directors.