James Damore, a former Google engineer, was fired last August after circulating a memo in which he argued that men predominate in software engineering because they are more biologically inclined toward analytical thinking than women; decried the company’s diversity and inclusion efforts as reflecting an “authoritarian” and “extreme” ideology; and claimed that Googlers with conservative political views were shamed, shunned, and silenced for expressing their opinions. Damore cried foul over his termination and subsequently filed a complaint with the National Labor Relations Board, then, along with another employee, later sued Google, claiming that the tech giant discriminated against white men.
The NLRB complaint was withdrawn later in January, ostensibly so that Damore and his lawyer Harmeet Dhillon could focus on the discrimination suit. But a newly disclosed letter written days earlier by Jayme Sophir, associate general counsel of the NLRB’s division of advice, concludes that Google had every right to fire Damore over the contents of the memo, Adi Robertson reports at the Verge:
In her analysis, Sophir writes that employers should be given “particular deference” in trying to enforce anti-discrimination and anti-harassment policies, since these are tied to legal requirements. And employers have “a strong interest in promoting diversity” and cooperation across different groups of people. Because of this, “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,’” she writes. “Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions.” …
Some legal experts suggested that Damore might have a solid legal complaint, if he could argue that he was discussing working conditions. But that apparently wasn’t a strong enough case for the NLRB — and Damore will be making an arguably tougher one in claiming that Google is systematically biased against white men. Al Latham, a partner at Paul Hastings LLP — which represented Google in the case — said that “we are gratified that the NLRB General Counsel found that Google acted lawfully in not allowing this employee to create a hostile work environment.”
Google, Sophir noted, was very careful in firing Damore to make clear that his termination was based not on the protected political opinions he expressed but rather on the harm he had done to the company and his female colleagues. The letter also points out that two female engineering candidates withdrew from consideration by Google after his “manifesto” went viral, illustrating the nature of that damage, and that Google had disciplined one of Damore’s colleagues for sending him a threatening email in response to the memo.
Neither Google nor Damore’s attorney have commented on the NLRB letter, but a former chair of the NLRB tells Bloomberg that Sophir’s conclusion is unsurprising:
The labor board lawyer’s conclusion is “consistent with board precedent for decades, which has viewed speech which creates a hostile environment likely to produce both discord and divisiveness as unprotected,” said William Gould IV, who chaired the board under President Bill Clinton. “In the course of protesting working conditions you can be profane and aggressive and unpleasant, you can be militant, and it’s still protected,” Gould said. However, he said, “What separates this is its derisiveness and stereotypical characterization of one gender.”
Notwithstanding the NLRB’s opinion, experts will continue to disagree over whether firing Damore was the right call for Google. Unfortunately, the company really had no good options in this situation, as both firing him and declining to fire him would have invited some sort of backlash. This controversy remains a teachable moment, as Google is hardly the only company with employees who question the merits of diversity and inclusion programs. There’s a lot employers can do to promote constructive conversations about the value of diversity and prevent destructive backlash.