Does Googler Fired Over Controversial Memo Have a Wrongful Termination Case?

Does Googler Fired Over Controversial Memo Have a Wrongful Termination Case?

James Damore, a senior software engineer at Google who was fired from his job on Monday after circulating a ten-page memo criticizing the company’s diversity efforts and making disputed claims about the biological differences between men and women, has said he is exploring his legal options for challenging his termination, and will likely take action against his former employer, the New York Times reports:

“I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does,” Mr. Damore said. … Before being fired, Mr. Damore said, he had submitted a complaint to the National Labor Relations Board claiming that Google’s upper management was “misrepresenting and shaming me in order to silence my complaints.” He added that it was “illegal to retaliate” against an N.L.R.B. charge.

However, it’s not at all clear that Damore has a legal leg to stand on, Reuters adds:

Nonunion or “at will” employees, such as most tech workers, can be fired in the US for a wide array of reasons that have nothing to do with performance. The US National Labor Relations Act guarantees workers, whether they are in a union or not, the right to engage in “concerted activities” for their “mutual aid or protection.” Damore, though, would most likely face an uphill fight to seek that protection based on his memo, said Alison Morantz, a Stanford University law professor with expertise in labor law.

“It’s going to be a hard sell that this activity was either concerted or for mutual aid or protection, rather than simply venting or pitting one group of workers against the others, which does not sound very mutual,” Morantz said.

Still, Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek, writes in an op-ed at CNBC that Damore might be able to make a few legal arguments that his rights were violated in his termination:

First, federal labor law bars even non-union employers like Google from punishing an employee for communicating with fellow employees about improving working conditions. … Second, the engineer’s memo largely is a statement of his political views as they apply to workplace policies. …

Third, the engineer complained in parts of his memo about company policies that he believes violate employment discrimination laws. … It is unlawful for an employer to discipline an employee for challenging conduct that the employee reasonably believed to be discriminatory, even when a court later determines the conduct was not actually prohibited by the discrimination laws.

Google’s leadership is likely aware of these potential pitfalls, which is why Google CEO Sundar Pichai stressed in his memo to employees about the incident that what was unacceptable about Damore’s letter was not that it expressed off-limits opinions but rather that, by advanced the stereotype that women are less suited to coding than men because of biological differences in male and female brain function, it openly attacked his female colleagues and denigrated their ability to do their jobs.

The notion that Damore’s termination violated his right to free speech has gained traction among those who agree with his point of view, but that doesn’t fly with Business Insider’s Jim Edwards, who points out that the constitutional right to free speech protects citizens from their government, not employees from their employers:

The First Amendment to the US Constitution prevents the government from restricting your speech. It doesn’t restrict your employer from controlling your speech when you are at work. As the government is not involved in this case, Damore is already on shaky ground if he files a lawsuit arguing a free speech case.

More importantly, Damore’s speech has not been restricted. He can continue to express his opinion. Indeed, his opinion has already been published far more widely than he can have hoped. His speech is on steroids right now! His legal problem is that he does not have a constitutional right to a job at Google. If he is an “at-will” employee — i.e. an ordinary employee not governed by a special contract, like a film star might have — then Google has every right to demand that he leave.

He goes on to point out that while California protects employees from retaliation forbidding or preventing employees from “engaging or participating in politics or from becoming candidates for public office,” or “controlling or directing, or tending to control or direct the political activities or affiliations of employees,” these protections probably don’t apply to Damore:

The language is primarily intended to protect California employees who are running for elected office, or supporting those who run for office, when they are not at work. It’s not really intended to protect any-and-all speech. … Damore’s problem is that he used an internal Google mailing list owned by Google to disseminate his manifesto. Individuals do not have the right to use their employer’s resources to pay for their freedom of speech. …

In sum, Damore may have enough of a complaint to file a case, but that case — ultimately — won’t get very far unless the US Supreme Court is willing to adopt California law, widen it, and give all Americans a brand new right to use our bosses’ computers for any kind of political activity we want. Which, given the court’s 5-4 conservative majority, seems unlikely.