August 31, 2017 Category: Uncategorized
Last month, a Google employee was allegedly fired because he questioned the company’s attitude and position on women in the workplace. Specifically, James Damore issued an internal memo to his coworkers which argued that women are “underrepresented in tech not because they face bias and discrimination in the workplace, but because of inherent psychological differences between men and women.” He argued that gender gaps do not necessarily indicate sexism, but can be the result of the differences in capabilities of men and women. The memo was distributed while Google was under federal investigation for allegations of wage discrimination.
Damore was fired because of the content of his memo. He has indicated that he plans to file a lawsuit against his former employer for unlawful dismissal. The primary issue in this case may boil down to one question: did Google have the legal right to fire Damore for his speech?
In America, the First Amendment guarantees the right to free speech. However, there is a misconception about this right. The First Amendment only protects us from infringement or censorship by the government. Private employees who work for private companies are generally not protected against censorship or negative consequences for the things that they say. There is no right to unbridled free speech in the workplace. Yes, there are certain exceptions, but for the most part, private employers have some discretion and power to terminate employees for the things that they say. Damore will be required to prove that his speech was protected in some way.
In California, employers are prohibited from making, enforcing, or adopting any policy that either (1) forbids or prevents employees from engaging in political activity, or (2) controls or directs the political activity or affiliation of employees. In his memo, Damore makes many political statements and claims. In it, he references “Google’s political bias” which he argues has the effect of “shaming” employees with conservative viewpoints “into silence.” He calls the atmosphere at Google “extreme and authoritarian” and argues that there is no way to have what he believes to be an open and honest conversation about the wage gap issue because of the “dominant ideology” of his employer.
Are these statements “political activity” in the eyes of the California law? The California Supreme Court has stated that political activity should not be defined narrowly. Instead, it should be widely defined to include any activities involving the “espousal of a candidate or a cause.” Should Damore’s memo political be considered an activity involving a wide social movement or political cause?
It could be. Political speech is probably Damore’s best argument against his termination. In his memo, he repeatedly references the oppressive atmosphere and the fact that he felt that the company’s own political bias prevented employees from engaging in a meaningful conversation about diversity and sexism in the workplace. However, at the same time, he also felt empowered enough to distribute the bracing memo to his co-workers.
Google will probably argue that his memo was inflammatory and discriminatory. Using this argument, Google could say that other employees – especially women – could be subject to a hostile work environment. If Google was aware of the memo and believed that it could reasonably incite a hostile work environment, it could conceivably be sued by female employees if it did not take action. Furthermore, if Damore was in a managerial or supervisory position any women under his purview could argue that they were subject to discrimination. While the California law protects political activity and some political speech, it may not protect speech about the internal rules, regulations, and processes of a private company.
Google is a private employer who has the right to fire at-will employees for just about any reason it sees fit. When an employee distributes an internal memo that advances negative and outdated stereotypes about gender and sex, it is probably realistic to expect some pushback and consequences. Damore will have an uphill battle in his employment termination lawsuit against Google. He will be required to prove that Google made or enforced a rule or policy that (1) forbid or prevented him from engaging in political politics, or (2) controlled or directed his political activity or affiliation. However, Google will likely have a strong argument about the inflammatory and incendiary nature of the memo.