On Monday, Google fired an employee for writing a controversial internal memo about the value of diversity initiatives at the company. James Damore, who confirmed to multiple outlets that he was the male software engineer behind the diversity memo, told Bloomberg News that he had been fired for “perpetuating gender stereotypes.”
Damore told the New York Times that he believed the firing was illegal and that he would “likely be pursuing legal action.” Damore said that he had already filed a complaint with the National Labor Relations Board on the basis that Google was “misrepresenting and shaming me in order to silence my complaints.”
Can you be fired for your political beliefs? Sometimes
Ladders talked with legal expert Jasmine McNealy, a University of Florida professor, about Damore’s case.
To prove his case to the NLRB, Damore will need to prove that he was engaging in the kind of political speech that is federally protected, McNealy said. Under the National Labor Relations Act, you’re allowed “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” which can include charged political speech.
“Even if it’s a private workspace, if you are talking about political issues as it relates to your employment or the employment environment, political speech is protected,” McNealy said.
What may bolster Damore’s case is that the U.S. Department of Labor is currently investigating Google for what it says is an “extreme” gender pay gap.
“He could point and be like, ‘hey, I feel like they [Google] are retaliating against me because I made this statement related to some area that they’re under investigation for,” McNealy said.
Under the National Labor Relations Act, such retaliatory conduct by management would be illegal.
Was it political speech?
But first, McNealy said Damore would need to clear a bigger hurdle and prove that he was actually engaging in protected political speech.
“Political subject matter would be the discussion of whether or not Google should continue its diversity and inclusion programs,” McNealy said.
But that wasn’t all Damore said.
“When he goes into ‘women are this way’ or ‘women are predisposed to such and such’ and that’s not based in science, then there’s perhaps problems,” McNealy said. “Statements like ‘women are prone to neuroses’ are not backed up by scientific evidence.”
Titled “Google’s Ideological Echo Chamber,” the memo alleged that women are underrepresented in technology because “men and women biologically differ in many ways.”
Damore said women are less suited to technology jobs because they are more anxious and have lower stress tolerances than men. Meanwhile, he said that men are well-suited to leadership because they are born with a “higher drive for status.”
Ex-Googler and current Facebook COO Sheryl Sandberg indirectly addressed the memo by disputing the biological differences Damore cited in his memo.
Inequality in tech isn’t due to gender differences. It’s due to cultural stereotypes that persist. We all need to do more.
McNealy said the case would hinge on these broad generalizations and “whether the court will look at the document as a whole or specific instances within the document that could be considered problematic.”
If the NLRB sides with Damore in his complaint, he may be financially compensated, McNealy said. Google may even have to take Damore back.
“A court could rule for things like damages, or reputational or emotional injuries, but also reinstatement,” she said. “That’s a possibility.”
Google: Engineer violated Code of Conduct
Although Google did not specifically comment on the firing, Google CEO Sundar Pichai addressed the controversy directly in a memo to employees. Pichai said that “portions of the memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.”
Pichai noted that Damore’s memo violated the section of the Code of Conduct that directs “each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.”
When you’re an at-will employee in the U.S., you can be fired for almost any reason at all “with or without notice, as long as the discharge does not violate a law,” according to U.S. labor laws.
Furthermore, creating a hostile workplace environment — which Google could argue Damore did for female and minority employees — isn’t protected by your employer or the government.
“I would presume that their major argument would be that they have a duty to their employees internationally to set a standard and to make sure that the work environment for all of its employees is one that is not hostile,” McNealy said. “But importantly that it reflects the wish not to violate the law with respect to creating hostile work environments.”
And many Googlers believe that Damore’s words were hostile actions. Former Google executive Yonatan Zunger said the memo was grounds for firing because Damore had created “a textbook hostile workplace environment” where he would not be able to collaborate with anyone.
“Anyone can have any perspective they want,” McNealy said. “It’s just whether or not those perspectives are going to create a workplace that’s not conducive for their colleagues to continue to work and feel safe.”
There’s always another company
But even if Google doesn’t want Damore, some other employers still might. WikiLeaks publisher Julian Assange tweeted that his company would offer Damore a job because “censorship is for losers.”
— Julian Assange ⌛ (@JulianAssange) August 8, 2017