In a country known for its reverence of free speech, in a state strict with labor codes, in an industry steeped in libertarian and progressive ideals, if an employee has something to say, he should just be able to say it, right?
Not quite, as one Google employee learned the hard way when he was fired Monday after writing and internally circulating a memo in which he criticized the company's diversity efforts as unfair and discriminatory.
When the memo became public, women and under-represented groups in tech decried it and Google denounced it. But by Monday night, after Google fired the engineer, claiming he’d violated the company’s code of conduct, the conversation shifted. Some in tech were incredulous that someone could lose his job for expressing dissent. People took to Twitter: Whither free speech?
The thing about free speech
One thing many misunderstand about the 1st Amendment is that it only protects the public’s right to free speech from government censorship — meaning it doesn’t apply to the relationship between private employers and employees.
“The 1st Amendment is actually irrelevant because the language says, ‘Congress shall make no law … abridging the freedom of speech,’ so it only restricts what Congress may do,” said Matt Oster, an attorney with Wolf, Rifkin, Shapiro, Schulman & Rabkin. “An employer is pretty free to restrict what its employees may say, as long as it doesn’t run afoul of other rules.”
It’s a different story for government workers, who get 1st Amendment protections in the workplace because their employer is, well, the government. But for employees of non-government organizations, there is no blanket free speech protection.
So what protections do employees have?
Employees have protections under the National Labor Relations Act and, in California, the Fair Employment and Housing Act, among other laws. These acts protect certain classes from discrimination based on categories such as gender, race, sexual orientation and national origin. Specific to California, political affiliations are also a protected class, which means an employer cannot take disciplinary action against an employee for his or her membership in a political organization, or for holding certain political views.
There are also other laws in California that carry non-retaliation provisions, which means if someone makes a complaint about work conditions — whether it’s workplace discrimination or unpaid overtime — an employer cannot fire him or her for expressing those opinions.
“The person complaining doesn’t even have to be right,” Oster said. “They only have to make their complaint in good faith.”
In the case of James Damore, the sacked Google employee, he accused Google in his 10-page memo of resorting to discriminatory practices in its quest to diversify its workforce. He argued, among other things, that creating programs and mentoring opportunities for women or people of certain ethnic groups creates a “high priority queue” for “diversity candidates,” and that the company shows more scrutiny toward “any set of people if it’s not ‘diverse’ enough,” but doesn’t show “that same scrutiny in the reverse direction.”
He also accused the company of alienating people with conservative views.
Whether an abitrator or jury will determine that Damore's complaints qualify for protection under California labor laws is yet to be seen.
“I have a 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,” he said in an email interview with the New York Times.
Damore told Associated Press on Tuesday that he was fired for “perpetuating gender stereotypes,” and that he considers his termination illegal because he had already filed a complaint with the National Labor Relations Board. He also said he was exploring his legal options.
What’s Google’s case?
While Damore could argue that his termination was a violation of the National Labor Code or the Fair Employment and Housing Act, Google could counter that he wasn’t fired for views protected under the labor code, legal experts said.
Employment attorneys were quick to point out that in his own memo to employees, Google Chief Executive Sundar Pichai acknowledged that parts of Damore’s memo were “fair to debate, regardless of whether a vast majority of Googlers disagree with it,” potentially setting the company up to defend itself against accusations of quelling unpopular opinions.
Instead, Pichai focused on the “portions of the memo” that violated the company’s code of conduct, such as when Damore stereotyped women by stating that women on average were more neurotic and prone to anxiety, making them less compatible with tech’s work environment.
Once Damore’s memo went public, Google had two options, said Adam Galinsky, a professor of management at the Columbia Business School: stand by the employee, or fire him.
“The most important thing was some decisive, strongly worded action had to be taken by Google because of the firestorm this created,” Galinsky said.
Despite the potential for Damore to take legal action, Galinsky believes the company did the right thing, particularly in light of the cultural shift taking place in Silicon Valley, where discriminatory behavior is decreasingly tolerated.
But in addition to taking a moral stance, employment attorneys believe Google took a wise legal stance, too.
“The company has a responsibility to take appropriate, corrective action, and an employer has an obligation to prevent any conduct that creates a hostile work environment,” said Genie Harrison, an employment law expert at Genie Harrison Law Firm.
“It’s a fair business decision, because imagine if they retain him, they send him to some kind of sensitivity training, they bring him back to the workplace, and two months from now the guy is working with female employees and he says something sexist,” Harrison said. “Those women are going to have robust potential cases against Google, because they will argue that Google knew that he was sexist and didn’t take appropriate action [to prevent him] from doing it again.”
Damore supporters took to Twitter to debate Google's decision, describing it as a case of political correctness gone wild, and painting Google as an authoritarian organization that didn't allow for dissenting or unpopular views. Some techies also thought the memo, in which Damore wrote that biological differences between men and women are the reason some women might not excel in the tech profession, made fair points.
"You don't fire a biologist for noting that the SRY protein could result in social/cognitive differences as if he were promoting harassment," Eric Weinstein, the managing director of Thiel Capital, said on Twitter.
Things might have been different
Damore published the memo on Google’s internal platform. If he, or any employee, for that matter, had published his memo externally, in his own time, on his own website, without using any of Google’s resources, things might have played out differently, employment attorneys said.
That’s because California has a statute in the labor code that says an employer cannot discipline an employee for conduct that is not illegal, and takes place outside of working hours, not on work premises, and not using work equipment.
Would there still be a kerfuffle about the memo? Probably. But Google would probably have a harder time firing him.
If Damore moves ahead with a legal case, his fate, as well as those of his 3,411 words, will ultimately be decided by an arbitrator or a jury.
“It’s not like there’s a black-and-white test you can use to say if this sort of thing is protected or not,” said Eve Wagner, a partner at law firm Sauer & Wagner. “This definitely falls in a gray area. It’ll be an interesting case to follow.”