newsCO.com.au | Google’s Former Anti-Diversity Employee Has No Case

August 22, 2017

@newsCOflash

2017-08-17 01:21:07

Last week, an anti-diversity screed written by a Google employee, James Damore, went viral. In it, Damore made a variety of outlandish claims, including that the gender imbalance in the technology sector was attributable to “biological differences” between men and women. Shortly after, he was terminated for advancing harmful gender stereotypes. Damore has since said that he plans to sue Google for unlawful dismissal. As of now, it is unclear what claims he intends to bring. Fortune, however, has suggested a number of paths for him; in its view, he “may have a case.” Even this measured claim overstates the likelihood of Mr. Damore’s success in court.

Fortune’s suggestions that Google violated federal labor or civil rights law are barely worth addressing. The National Labor Relations Act prevents employers from interfering with employee efforts to organize unions or with “concerted activities” to improve their office. Despite extensive coverage, there has been no suggestion that Damore was attempting to organize a union; nor is it likely that a single, internal memo would meet the standard of a “concerted activity” to improve the workplace. Federal (and state) civil rights laws prohibit discrimination on the basis of a variety of protected characteristics, including sex and race. Again, there has been indication that Damore was fired either for being a man or for being white. Such a claim would likely be laughed out of court.

Damore’s strongest argument for liability would be that Google violated California’s prohibition on employer interference with employee political activity. As Fortune tells it, California law prohibits employers from infringing on the political speech of employees; therefore, because the content of Damore’s memo was political, Google is probably liable.

This still makes a weak case for liability, and Fortune’s analysis misconstrues the law. The law provides:

No employer shall make, adopt, or enforce any rule, regulation, or policy: . . . Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity. Cal. Labor Code §§ 1101-1102.

Given the language and the available facts, Damore would face several hurdles in establishing a violation. For example, Damore would have to demonstrate that Google had a policy in place controlling his political expression, or that Google tried to coerce him into not expressing his political opinions by threatening him with termination. This seems unlikely. Publicly, at least, Google appears to encourage, rather than discourage, the free expression of ideas; nor has it expressed bias against conservatives, as Damore asserts. An individual retaliatory decision—namely, his own—would probably not suffice to establish a “policy.” See Ross v. Indep. Living Res., No. C08-00854 TEH, 2010 WL 2898773, at *9 (N.D. Cal., July 21, 2010).

The only argument Damore might have on this point is that the Google Code of Conduct is such a policy. The official reason given for Damore’s termination was that he violated Google’s Code of Conduct by “advancing harmful gender stereotypes in our workplace.” Technically, this may be a “policy” covered by the California law which “controls or directs” the political action of employees, if the law is interpreted liberally. Nonetheless, no court would find Google liable on this basis, as it would require a finding that the requirements of state and federal civil rights law contradict the requirements of the “free speech” statute.

Furthermore, the little case law on point is mixed, potentially making the statute even less protective. California courts have not explicitly held that the statute applies to freedom of speech inside of the workplace, as opposed to outside of it. Likewise, one federal court has suggested there exists an exception where “the employee’s political activities are patently in conflict with the employer’s interests.” Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993). Google could mount a convincing defense, on the basis of its Code of Conduct, reason provided for Damore’s termination, and subsequent statements, that Damore’s conduct was “patently in conflict” with its interests.

Whatever he decides to do next, Damore’s legal options seem limited—ironically, to the outrage of many conservatives who also push for greater exceptions to laws protecting employees from discharge.

This post originally appeared on the blog of the California Civil Rights Law Group. This blog is provided for informational purposes only and not for the purpose of providing legal advice.

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