Monday, August 28, 2017

Googling for a Cause of Action

Earlier this month, James Damore, a Google software developer, lost his job after authoring a memo on the reasons for gender discrepancies in the information technology sector. In his memo, Damore argued that women are not as biologically suited to be software engineers as men. Damore also argued that the policies and programs implemented by Google to encourage gender and racial diversity highlight the company’s “politically correct” ideology and create an oppressive environment for employees with more conservative leanings. Damore shared his memo internally with his coworkers through an online collaborative workspace, but eventually the memo made it into the hands of reporters and it became a national news story. Within days, Google fired Damore for violating the company’s code of conduct by perpetuating gender stereotypes with his memo. After his termination, Damore stated that he was “exploring all possible legal remedies” and retained a lawyer.

So, the questions arise, what are Google’s legal liabilities in this situation and what federal causes of action might be available to Damore?

At-Will Employment

The first thing to realize is that most workers in the United States, including Damore, are “at-will employees.” At-will employees can be fired for any reason, no reason, a bad reason, or a made-up reason without any legal repercussions, unless that reason is prohibited by a specific law. For example, it is unlawful for most employers to fire an employee because of that employee’s race, gender, or disability. Unionized employees who work under collective bargaining agreements and most government workers are not at-will employees; these groups have extra rights when it comes to job termination. Thus, absent a legal, contractual, or constitutional violation, Damore would not likely have a claim against Google for firing him.

First Amendment

When a person says Americans have the right to free speech, they are referring to the protections codified in the First Amendment of the United States Constitution. That Amendment states “Congress shall make no law . . . abridging the freedom of speech.” In short, the federal government – and State governments, according to the Supreme Court – is not allowed to tell you what you can and cannot say or penalize you for speaking. However, private companies, like Google, are not bound by the Amendment. Google is free to terminate employees for the views they express, even if those views are intrinsically political, like Damore’s, without exposing itself to a lawsuit brought under the First Amendment.

NLRA

Section 7 of the National Labor Relations Act (“NLRA”) provides, in part, “employees shall have the right... to engage in other concerted activities for the purpose of... mutual aid or protection.” The term “concerted activity” is interpreted very broadly. The National Labor Relations Board, the independent government agency that enforces the NLRA, describes it as “your right to band together with coworkers to improve your lives at work.” Many people mistakenly believe the NLRA only protects employees who are members of unions, but, actually, most private sector employees are covered by the Act. Therefore, it is a violation of this federal law for an employer to fire an employee for complaining to other employees about their working conditions.

Damore writes in his memo, “I’ve gotten many personal messages from fellow Googlers expressing their gratitude for bringing up these very important issues which they agree with but would never have the courage to say or defend because of our shaming culture and the possibility of being fired. This needs to change.” He goes on to say, “open and honest discussion with those who disagree can highlight our blind spots and help us grow, which is why I wrote this document.”

It appears that with this memo – uploaded to Google’s document collaboration tool and discussed on internal company message boards – Damore is expressing his view of a working environment that is hostile to those that believe that Google’s programs and policies regarding diversity are discriminatory and frivolous. That could be considered concerted activity by the NLRB. Indeed, in the 2015 case of Cooper Tire & Rubber Co. v. United Steel, et al., an NLRB Administrative Law Judge held that an employer may not fire an employee for racist taunts directed at a replacement worker from a picket line. Of course, Damore’s situation is different in that he was not involved in a picket line, an unquestionably concerted activity “where a certain degree of confrontation is expected” when he made his comments. However, a former chair of the NLRB under President Obama, Wilma Liebman, has said of Damore’s Section 7 claims: “I think it’s an open question. It’s not a slam dunk either way.”

Title VII

At its most basic premise, Title VII of the Civil Rights Act of 1964 (“Title VII”) made it unlawful for an employer to discriminate against an employee on the basis of his or her race, color, religion, sex, or national origin. Additionally, the law provides, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees... because he has opposed any practice made an unlawful employment practice.”

Throughout his memo, Damore refers to Google’s “discriminatory practices” such as “programs, mentoring, and classes only for people with certain gender or race.” Damore’s perception that these diversity programs discriminate against him, as a white male, is not uncommon. The Harvard Business Review “found evidence that [a company’s promotion of diversity rhetoric] not only makes white men believe that women and minorities are being treated fairly — whether that’s true or not — it also makes them more likely to believe that they themselves are being treated unfairly.”

In a lawsuit, Damore could argue that he made protected disclosures in his memo about the programs he perceives to be illegal discrimination against men and, therefore, he cannot be fired for his comments. As long as the programs maintained by Google to assist advancement by women and minorities are voluntary and inclusionary, as opposed to exclusionary, they are likely allowed under Title VII. It is not clear, relying on Damore’s memo alone, if Google’s diversity programs actively bar the participation of male and white employees or, instead, if the programs are primarily targeted at minority employees.

Even if Google’s diversity programs are perfectly legal, Damore may still be able to make the argument that he reasonably believed the programs were unlawful and, therefore, his termination violated Title VII. The Supreme Court has not adopted a test to determine whether an employee’s opposition to discrimination must be reasonable; therefore, the outcome of the analysis is dependent on the judicial circuit in which the case is brought.

Flip-side

Damore’s situation leads to the question: is Google — legally — stuck between a rock and a hard place? The company’s termination of Damore for his memo exposes Google to legal action from him; however, if it had not fired him, it would have exposed itself to liability from the other direction – Damore’s female coworkers.

Prior to the release of Damore’s memo, Google was already in the midst of a regulatory battle regarding its alleged systemic gender-based pay disparities and the poor treatment of women in Silicon Valley has been consistently in the news.

If Google had concluded that Damore’s memo was protected by either Title VII or the NLRA, and, therefore, they could not legally fire him, female employees bringing sex discrimination complaints could point to Google’s inaction regarding the memo and argue that the company supports the perpetuation of these sexist points of view because it did not make any efforts to discipline Damore for openly expressing them.

In conclusion, Google may have picked the best option from a menu of bad legal choices when it decided to fire James Damore. It will be interesting to watch how this situation plays out.

Written by Sarah Martin.

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