A recently released NLRB memo has concluded that Google did not break any labor laws when they fired James Damore. Damore, a senior software engineer, was fired in August after writing and circulating an internal memo that disclosed Google’s diversity initiatives. His memo, titled “Google’s Ideological Echo Chamber,” alleged that women are underrepresented in technology because of innate, biological differences such as being prone to anxiety, having lower stress tolerances and looking for more work-life balance.
Damore filed a complaint with the NLRB, stating that Google was misrepresenting and shaming him into silence. He believed he was engaging in “concerted activity”, which allows employees to discuss their working conditions. Damore argued that his memo constituted this protected speech and his termination was thus unlawful. Google argued that its termination of Damore was not based on his discussion of the company’s training, hiring, or about his differing political views; instead Damore’s advancement of explicit gender stereotypes gave him the boot.
The NLRB rejected Damore’s claim of unlawful termination, stating that Google determined Damore’s memo violated policies of harassment and discrimination and was terminated for those reasons. The NLRB agreed that some parts of his memo were in fact protected, like his statements on workplace conditions which would be “concerted activity.”
Ultimately, the NLRB concluded that Google fired him solely for the unprotected statements. His statements on the biological differences between men and women were so harmful, discriminatory and disruptive and violated Google’s policies. The NLRB described the statements as “discriminatory and constituted sexual harassment, notwithstanding [his] effort to cloak [his] comments with ‘scientific’ references and analysis, and notwithstanding [his] ‘not all women’ disclaimers. Moreover, those statements were likely to cause serious dissension and disruption in the workplace.” The NLRB concluded, if an employees’ conduct constitutes racial or sexual discrimination or harassment, these statements are unprotected – regardless of whether these statements involved concerted activities.
Damore’s suit against Google continues forward, without the support of the NLRB. Damore filed suit in January claiming that Google unfairly discriminates against white men with unpopular conservative political views. While the case is pending in California, the NLRB memo reminds employees and employers alike on the lasting debate on protected speech in the workplace. Do employees have sufficient opportunities for free speech in the workplace? At what point does it cross the line as violating the company’s core values or code of conduct? The NLRB seems to have provided some indication of what is permissible, which can serve as a helpful guide for employers if their employees make discriminatory or otherwise offensive statements.