Google is at the center of the human resources brouhaha of the week after firing one of its employees. Sundar Pichai. Google’s chief executive, terminated software engineer James Damore for violating the company’s code of conduct by “advancing harmful gender stereotypes” in the workplace. Damore’s offense? He wrote and circulated a controversial diversity manifesto, which questioned the tech giant’s diversity initiatives. That might have been fine in so far as that goes – Google encourages criticism. But the manifesto, entitled Google’s ideological echo chamber, was laced with stereotypes that many found offensive. Among other things, Damore posited that women are essentially less biologically suited for jobs in tech, and bolstered his case with such arguments as women having more neuroticism (higher anxiety, lower stress tolerance). He also held that Google’s diversity initiatives are discriminatory and that Google is biased against conservatives.
This issues must be seen in the larger backdrop of the tech industry’s poor record for hiring women and people of color. The industry has been harshly criticized for being discriminatory and unwelcoming to women and minorities. (See Silicon Valley’s sexism problem and Why Can’t Silicon Valley Solve Its Diversity Problem? for a few examples.) As an industry pacesetter with a progressive reputation, Google is hardly playing a leadership role in this area: the company is 69% male and only 20% of Google’s tech workers are women.
The memo quickly went viral – and political – on social media. James Damore submitted a complaint to the National Labor Relations Board and announced his intention to sue Google.
Does he have a case?
Our first thought was that California is an at-will state so Google is within its rights to terminate the employee for any reason: See Employment at Will: What It Really Means in California from SHRM, which states that:
California’s Labor Code contains a presumption that employees are employed at will. This means that either the employer or the employee may terminate employment at any time, with or without cause or prior notice. This is important for employers because “cause” is defined under California law as “a fair and honest cause or reason, regulated by good faith on the part of the employer.” Employers would be significantly burdened if they had to prove to a court or jury that they acted “fairly” and “in good faith” in every employee termination.
Our second thought was that if Google did not take action, the manifesto could potentially be cited in a harassment or discrimination suit as a contributing factor to a hostile work environment.
We aren’t employment law attorneys, however, so we sought out legal opinions.
Insurance Journal spoke with several employment law attorneys for their article, Google Author of Diversity Memo Explores Legal Options After Firing – the consensus being Damoe has a weak case, if any.
“William Gould, a Stanford law professor and former National Labor Relations Board chairman, said Google had a strong argument its firing of Damore was justified on the grounds that his memo raised questions about whether he could fairly assess the work of female colleagues.
Gould said Damore would have a tough time arguing his firing violated his right to free speech. Private employers can largely fire workers for any reason. Some states including California have laws protecting political speech by employees but that protection would probably not apply to an internal memo focused on Google’s own policies, Gould said.”
In Ohio Employer’s Law Blog, Jon Hyman posts that Diversity is not an ideology. He notes that although Damore’s complaints have gained some traction from the anti political correctness contingent, including at least one senator, Google was within their rights:
“No employer in America is or can be required to employ a racial bigot.” This truism starts the dissenting opinion of Judge C. Arlen Bean of the 8th District Court of Appeals in Cooper Tire & Rubber Co. v. NLRB (more on this decision tomorrow). The same sentiment applies to sexists (and xenophobes, etc.). Senator Cornyn would have you believe otherwise.
In Is Misogyny Protected Activity? Barbara Hoey and Steven Nevolis offer opinions on the case, and dissect the reasons why they think any claim to the NLRB or claim of protected speech under Title VII of the Civil Rights Act will likely fail.
Philip Miles at Lawffice thinks that Damoe might have a legal case. In About that guy who got fired from Google for writing that memo . . . , he says: .
“Based on the information I’ve seen so far, it sounds like he has some viable claims for NLRA and Title VII retaliation. Call it a hunch, but I think this guy may refuse a confidential settlement and payout to fight this one out in what he perceives as an ideological battle. “
Other attorneys agree that the case is difficult but not impossible.
If he does indeed file it will be some time before the case wends its way through court, but we’ll keep an eye out because it is one that raises many challenging issues for HR managers. We suspect that we have not heard the last of this.