As I cast my eyes toward the upcoming academic year, I’d like to publicly thank Google for providing a veritable semester-long case study on legal issues related to human resource management. From questions of free speech, employment at will, and labor relations, to questions of hostile environment, affirmative action, and retaliatory discharge, Google’s firing of James Damore has it all.
So far, most media reports have cast Damore’s firing as entirely legal. Some reporters have highlighted Damore’s status as an at-will employee, which allows Google to fire him for any lawful reason. Others have focused on Google’s status as a private employer, which means the First Amendment does not prohibit it from firing Damore because of his speech.
But contrary to the running narrative, Damore has two viable legal claims, evident from comments he made to The New York Times: “I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does.” Damore added that before his firing, he filed a complaint with the National Labor Relations Board, alleging Google was “misrepresenting and shaming me in order to silence my complaints.” He noted that it was “illegal to retaliate” against him for filing the NLRB charge.
The Right to Improve Working Conditions Is Protected
While Damore’s Monday filing with the NLRB resembles a last-second Hail Mary, we need to remember that some such passes connect. All it would take is a chance email showing the NRLB filing pushed Google forward with its decision to fire Damore. After all, earlier in the day, Google’s CEO Sundar Pichai had told employees that portions of the memo “violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace,” but said nothing then of Damore’s firing. Discovery would reveal any evidence that the NLRB charge forced Google’s hand.
Frankly, I doubt Google was that foolish. But if Damore collaborated with others in publishing his memo, either before or after, that could qualify as a “concerted activity” protected by Section 7 of the National Labor Relations Act, which the NLRB enforces. NRLB says concerted activity “gives employees the right to act together to try to improve their pay and working conditions, with or without a union.” Firing someone for engaging in concerted activities is illegal, and Damore seems primed to push this legal theory.
Whether it’s a winner will depend on Google’s internal workings: Were employees encouraged to share ideas with each other to improve the work environment? And did any employee engage and support Damore’s suggestions?
With what we know to date, I’m inclined to agree with the legal assessment of Wilma Liebman, NRLB chair under Barack Obama. In discussing the viability of Damore’s claim under Section 7, she told Bloomberg: “I think it’s an open question. It’s not a slam dunk either way.”
The Big Risk, However, Is Discrimination
However, Bloomberg’s additional experts posit that Damore’s other potential legal avenues are unlikely to succeed. I disagree. I think Google’s biggest risk comes not from Section 7 and the NLRB, but Title VII and the Equal Employment Opportunity Commission.
Title VII of the Civil Rights Act of 1964 provides that it is illegal for an employer to discriminate against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter.” If anyone had bothered to actually read Damore’s memo, this significant passage would have leaped from the screen indicating precisely that:
Again, Damore wrote “Google has created several discriminatory practices.” This reads of a classic case of opposition to an unlawful employment practice. (Under the case law, the practice need not actually be illegal if the employee reasonably believed it discriminatory.)
This passage may well be Google’s undoing. Damore can present a prima facie case of illegal retaliation: he engaged in protected activity by opposing several discriminatory practices, and was fired from his job. The close temporal nexus creates an inference that Google fired him because of his opposition to illegal discrimination.
Google Is Probably a Hypocrite on the Gender Stereotyping
Of course, Google will counter that it fired him not because of his opposition but because of the gender stereotypes he included in the memo. While Twitter had some fun pointing out the hypocrisy of Google’s claim, more damning to Google’s defense will be any internal documents uncovered during discovery showing Google executives or H.R. managers held similar stereotypical views. (Maybe Google even implemented recruiting tools based on those beliefs to attract female candidates?) Discovery will also turn up any instances of female employees who have likewise shared stereotypical opinions at work but were not fired. My gut tells me Damore’s lawyers will have ample evidence to reach a jury on a retaliation claim.
Once before a jury, Google will be hard-pressed to justify Damore’s firing because the jury will be force-fed the actual words Damore wrote, not the press’ hysterical gloss. In this regard, Google was in a no-win situation: Once the Neanderthal narrative formed, Google had no real choice but to fire Damore—which doesn’t make it right or, as Google is likely to find out soon, legal. In the meantime, the rest of the country will be treated to a nice civics refresher course and a deep-dive into federal employment and labor law.