Can Google be sued for firing engineer for his views about diversity?

Can Google be sued for firing engineer for his views about diversity?

In “Google Can’t Seem to Tolerate Diversity: Silicon Valley won’t solve its gender issues if political correctness shuts down every conversation,” Bloomberg News’s Elaine Ou describes the firing of a Google engineer for objecting to Google’s race and gender-based diversity policies:

Over the weekend, a Google engineer named James Damore gained infamy for publishing a 10-page criticism of the company’s “authoritarian” approach to achieving gender diversity. By Monday, he was fired. If the goal was to confirm Damore’s thesis, Team Google is doing a great job. Titled “Google’s Ideological Echo Chamber,” the memo sets out a well-intentioned goal: Find non-discriminatory ways to reduce gender disparities. At last tally, women occupied only 20 percent of [its] tech jobs. … Damore, who wrote the memo anonymously and later identified himself publicly and confirmed his dismissal, argues that Google’s use of targets (known as “objectives and key results”) can incentivize reverse discrimination, and suggests focusing instead on rewarding what he calls inherently “female” traits — such as cooperation and the desire for a better work-life balance.

As Ou, herself a female engineer in Silicon Valley, observes:

Silicon Valley has a very peculiar definition of diversity that requires proportional representation from every gender and race, all of whom must think exactly alike. Given that Google has failed to reach this ideal despite nearly a decade of efforts, Damore might be right to suggest that it try a different tack. Google rejects 99.8 percent of job applicants, making it far more selective than any Ivy League university. It’s not unreasonable to posit that in this top 0.2 percent of the population, there may be various ways in which talent manifests differently between the sexes.

Private employers aren’t bound by the First Amendment, but Google has long misled its employees into believing that internal debate is encouraged, by claiming that employees should be free to express themselves. That misrepresentation presumably encouraged Damore to engage in the very commentary for which Google fired him. Eric Schmidt, who heads Google’s parent company, Alphabet, has long claimed that “The company was founded on the principles of freedom of expression.” In firing Damore, Google CEO Sundar Pichai illustrated the deceptiveness of these representations, and his own utter mendacity, simultaneously claiming that Google employees were “free to express dissent,” and that “we strongly support the right of Googlers to express themselves,” even while claiming that “portions of the memo…cross the line by advancing harmful gender stereotypes in our workplace.”

Google has probably committed retaliation in violation of Title VII of the 1964 Civil Rights Act, which forbids retaliation against people who complain of discrimination unless their complaints are clearly unreasonable.  While the First Amendment doesn’t bind private employers, they are bound by the anti-retaliation provisions of Title VII and similar laws, which have been interpreted by courts as protecting people from being fired for protesting perceived reverse discrimination — even when the reverse discrimination turns out to be legal. See, e.g., Sisco v. J.S. Alberici Const. Co., 655 F.2d 146 (8th Cir. 1981); Parker v. B & O Railroad Co., 652 F.2d 1012 (D.C. Cir. 1981); Setser v. Novack Investment Co., 638 F.2d 1137 (8th Cir. 1980).

For example, criticism of race-based affirmative action is protected even when the affirmative action in question was permitted by Title VII as a way of remedying gender or race based imbalances in the workforce. Non-lawyers are not expected to understand the nuances distinguishing illegal reverse discrimination from legal reverse discrimination. And some reverse discrimination is plainly illegal, as the Supreme Court made clear in ruling in favor of white employees allegedly fired based on their race in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976).

Damore explicitly complained of discrimination. He wrote that “Google has created several discriminatory practices.” “Discriminating just to increase the representation of women in tech is as misguided and biased as mandating increases for women’s representation in the homeless, work-related and violent deaths, prisons, and school dropouts,” read one of his bullet points.

As Rod Dreher points out, here is the memo’s summary [emphasis added]:

  • Google’s political bias has equated the freedom from offense with psychological safety, but shaming into silence is the antithesis of psychological safety.
  • This silencing has created an ideological echo chamber where some ideas are too sacred to be honestly discussed.
  • The lack of discussion fosters the most extreme and authoritarian elements of this ideology.
  • Extreme: all disparities in representation are due to oppression
  • Authoritarian: we should discriminate to correct for this oppression
  • Differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership.
  • Discrimination to reach equal representation is unfair, divisive, and bad for business.

Given that his memo explicitly targeted “discrimination,” it was probably legally protected against retaliation. Perhaps recognizing this reality, Google took pains to suggest that it was not firing him for opposing reverse discrimination per se, with CEO Pichai stating that “many points raised in the memo—such as… debating whether programs for women and underserved groups are sufficiently open to all—are important topics. The author had a right to express their views on those topics.” Rather, he claimed, Damore was being fired for “advancing harmful gender stereotypes in our workplace.”

But you can’t slice up a logically interconnected memo this way. It seems to me that the memo, as a cohesive whole, was protected against retaliation.*

And despite Google’s claim that Damore’s views were “advancing harmful gender stereotypes,” they would clearly be protected by the First Amendment against governmental censorship. A belief that men and women have biological differences that affect their interests (or even abilities) is protected speech. A federal judge made that clear in striking down the University of Michigan’s discriminatory harassment policy in a challenge by a psychology graduate student who wanted to discuss research showing such biologically-based differences between men and women.  See Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1991). Damore, who studied biology at Harvard, was presumably aware of such research.

Moreover, Damore’s views are not outside the mainstream insofar as they posited differences in men’s and women’s median interests and tolerance for risk. While there are individual women who are willing and able to do just about any job (and accordingly Damore said that Google should “treat people as individuals, not as just another member of their group”), on average, men and women have somewhat different interests, just as Damore suggested. Courts have recognized that women’s interests, on average, are somewhat different than men’s.

For example, a federal appeals court upheld a ruling in favor of Sears, Roebuck & Co., which was sued over gender imbalances in its work force, accepting expert testimony that men and women have different interests on average, and that women tend to be more risk averse.  EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 320-21, 334-38 (7th Cir. 1988) (upholding the district court’s conclusion that “interest alone can account for the [gender-based workforce] disparities computed under EEOC’s analysis.”). Racial or sexual “underrepresentation” doesn’t necessarily prove discrimination: indeed, the Supreme Court has rejected as “completely unrealistic” the “assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989)).

Again, the First Amendment does not cover private employers like Google, but Google could contractually bind itself not to restrict the free speech and dissenting views of its employees. Many private colleges have contractual provisions protecting free speech to a certain extent.  Cf. Silva v. University of New Hampshire, 888 F.Supp. 293 (D.N.H. 1994) (college professor had claim under AAUP collective bargaining agreement for restrictions on his in-class speech that was protected under that agreement).

The Google CEO claimed Damore’s views violated Google’s Code of Conduct requiring a “workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.” But courts have held that speech much more intemperate than Damore’s is not harassment, or is protected against retaliation. The California Department of Corrections attempted to fire John Wallace after he angrily denounced its affirmative action plan to the Hispanic female employee he perceived as benefiting from it. An appeals court, however, ruled that his criticism was protected by the First Amendment, not “harassment” of the offended employee, in California Department of Corrections v. State Personnel Board, 59 Cal.App.4th 131 (1997). Much worse views have been held not to be “harassment” or “discrimination,” such as the racially charged anti-immigration rants deemed protected speech by the Ninth Circuit Court of Appeals in Rodriguez v. Maricopa Community College District, 605 F.3d 703 (9th Cir. 2010).  In another case, a court found no harassment even though the plaintiff’s manager had told her, ‘We’ve made every female in this office cry like a baby. We will do the same to you. Just give us time. We will find your weakness,’” and allegedly made other offensive comments, such as saying “why don’t we have sales assistants that look like that?” after seeing a buxom, scantily-clad woman, and telling the plaintiff, “Why don’t you go home and fetch your husband’s slippers like a good little wife.” (Hartsell v. Duplex Products, 123 F.3d 766 (4th Cir. 1997)).

Damore apparently is thinking of suing — but not based on the retaliation theory I have discussed above. As Jeff John Roberts notes in Fortune, “Damore has told the New York Times he intends to sue Google for illegal dismissal, and that he has already filed a complaint with the National Labor Relations Board….Under Section 7 of the National Labor Relations Act, employers are barred from prohibiting employees from organizing a union—nor can they interfere with “concerted activities” aimed at improving the workplace. There’s no evidence that Damore, who worked on Google’s search product, was trying to organize a union. But he could argue that circulating his memo, which called for the inclusion of more diverse ideological viewpoints at Google, amounted to “concerted activities” protected under the law. He could likewise claim Google’s decision to fire him after he filed a NLRB complaint amounts to illegal retaliation.” Perhaps such a claim would be viable.

Roberts also notes that California has a law against restricting political activity: “[P]olitical activities,” the California Supreme Court has stated, “cannot be narrowly confined to partisan activity,” but instead cover any activities involving the “espousal of a candidate or a cause,” including participating in broad social movements such as the gay rights movement. Damore’s memo speaks at length about how Google allegedly alienates conservatives, and calls on the company to reconsider how it defines diversity—positions, in other words, that could be protected as political participation that is protected under the California law.” Roberts thinks “this argument may prove to be the strongest of Damore’s if he chooses to sue Google.” I don’t know enough about California law to express an opinion on that.

*For a case cautioning against slicing up speech into protected and unprotected pieces, the way Google did, see Eiland v. City of Montgomery, 797 F.2d 953 (11th Cir. 1986), which reversed a trial court ruling that a public employee’s poem could be separated into punishable and unpunishable pieces.

Jerome Woehrle

Jerome Woehrle

Jerome Woehrle is an attorney and author, who writes about politics.

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