Fired Google worker’s legal path narrow
Most experts say anti-diversity memo author’s options few
The engineer fired by Google after he blasted the company’s diversity policies can try to argue he was unfairly dismissed, but legal experts say he might not get far in court.
James Damore said Monday he was “exploring all possible legal remedies” after the internet giant terminated him over his 3,000-word manifesto blasting Google’s “left bias” for creating a “politically correct monoculture” that ignores differences between the sexes.
But unlike government employees, who have some free speech protections, private employees in the U.S. have little legal recourse if companies choose to retaliate for things they say at work or at home. In fact, most non-union private sector employees can be fired for almost any reason — or no reason at all.
“Any claim that (Damore) brings will have only a negligible chance at success,” said law professor Paul Secunda, who directs the labor and employment law program at Marquette University.
What’s more, firing Damore may have kept Google on the right side of the law, if the company or its employees felt that the memo had created a work environment that was hostile to women. Adam Galinsky, chair of management at Columbia Business School, said companies may have a legitimate reason for firing someone for expressing views that disrupt the professional environment.
“I think that the firing was the appropriate response here,” Galinsky said.
Damore could claim under the Civil Rights Act that he was fired for being male or for speaking out against anti-male discrimination, but Google could counter that it actually fired him for the attitudes he expressed about women, which aren’t protected.
On Monday, Google CEO Sundar Pichai sent a note to employees that said portions of Damore’s memo “violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.”
In his missive, Damore argued that biological differences play a role in the shortage of women in tech and leadership positions.
The memo and surrounding debate comes as Google fends off a lawsuit from the U.S. Department of Labor alleging the company systemically discriminates against women. Google has denied the charges. It argues that it doesn’t have a gender gap in pay but has declined to share full salary information with the government. According to the company’s most recent demographic report, 69 percent of its workforce and 80 percent of its technical staff are male.
Damore’s best bet might be to bring a claim under the National Labor Relations Act accusing the company of violating the legal protection for collective action in the workplace, said Wilma Liebman, a past chair of the National Labor Relations Board.
To prevail, he would have to show that his letter was related to workplace conditions, that it was designed to instigate collective action among his co-workers, and that it wasn’t so defamatory or offensive as to forfeit legal protection. “I think it’s an open question,” said Liebman. “It’s not a slam dunk either way.”