Experts

Google employee fired over diversity memo considers legal action – but experts say case appears weak

A Google engineer who was fired for a memo assailing the company’s diversity policies is considering legal action, but seemingly faces long odds of a successful case.

James Damore caused an uproar and ultimately lost his job after authoring a 10-page essay that said women are not biologically fit for certain technology roles. He also warned against “arbitrary social engineering of tech just to make it appealing to equal portions of both men and women” and claimed that efforts to hire more women via such methods are “misguided and biased.”

After he was terminated, Mr Damore – whose sacking has not been officially confirmed by the company – told Reuters that he was exploring his options and said he had filed a charge with the National Labor Relations Board before he was fired. He claimed in another email to a number of outlets that he would “likely be pursuing legal action”.

He did not respond to a message from The Independent seeking more details on his plans. A spokesman for the NLRB could not comment on any potential case, citing privacy protections.

Employment law gives employers broad discretion to fire at-will employees – workers who do not have contracts, like those negotiated by unions, that create more stringent requirements to fire someone. In an email to employees explaining the reaction to Mr Damore’s actions, Google CEO Sundar Pinchai – who is said to have returned from a vacation to deal with the matter – backed the rights of employees to “express themselves” but said Mr Damore’s comments breached the company’s code of conduct and “cross the line by advancing harmful gender stereotypes in our workplace.” 

Such reasoning should be a sufficient reason for Mr Damore’s firing, said Reuel Schiller, a professor and labour law expert at UC Hastings College of Law, since employee protections prevent people being fired for discriminatory reasons like a person’s race or religion.

But there is precedent in California of courts ruling in favour of employees who were fired for being outspoken about their views, noted William Gould, a professor emeritus at Stanford who chaired the NLRB. In one case, he noted, the law sided with a pacifist who had shared his anti-war views with coworkers.

“Employees can speak out, but I think the employer’s defence would be that this guy was speaking about women in a very stereotypical manner that was likely to prove to be disruptive,” said Mr Gould.

In his essay, Mr Damore complained about Google’s “ideological echo chamber” and said he wanted to increase representation of women in tech without moving towards discrimination.

Mr Damore claimed to have received support from a number of colleagues for his views, while others have supported his right to hold such opinions even if they do not agree with them. Other Google employees are believed to have used an internal discussion board to call for Mr Damore’s firing.

Reactions on social media have been split, with some users lambasting Google for stifling free speech and others arguing that Mr Damore’s manifesto was symptomatic of broader issues with diversity in the technology sector. 

Julian Assange, the founder of Wikileaks, said he was offering Mr Damore a job, as “censorship is for losers”. A number of right-wing websites such as Breitbart also rushed to his defence, with some people calling for a boycott of Google.

As for the firing, another consideration according to Mr Gould, is Google’s obligation to prevent sexual harassment. The company is already under scrutiny for how much it pays its female employees, with the Department of Labor suing for salary data.

The law also protects employees who are trying to engage in certain types of collective activities, the foundational example being discussing forming a union. Challenges to employers suppressing such activity are a substantial part of the NLRB’s brief.

But because Mr Damore’s essay did not seem designed to rally employees to his cause, his case there would be “pretty weak,” Mr Schiller said.

“If he had said ‘anybody who is interested in challenging the requirement that we go to diversity training, come meet with me,’ then he would have a very strong case,” Mr Schiller said, but it’s not clear Mr Damore’s memo was intended “to get people at Google to organize and protest against whatever the policies were that he didn’t like.”

Alternatively, Mr Damore could assert that he was fired in retaliation for filing a claim with the NLRB – something that is clearly prohibited. But doing do would require him proving that he was fired for reaching out to the labour board, rather than for his memo itself, and that the reason for his firing was part of a “concerted effort” – again, not just one employee speaking out but a part of a larger movement.

“If Google fired him for filing a charge with the NLRB that would be against the law, straight-up, regardless of the merits of what he’s pursuing,” Mr Gould said, but “he’s got to show that he was involved in concerted activities, that more than one employee was involved. If he doesn’t show that he’s out, case dismissed.”


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