James Damore, an engineer for Google, was fired earlier this week for authoring a 10-page document that included his thoughts on workplace diversity and more particularly his belief that female biological factors of are at least partially to blame for the overall lack of women in leadership roles at Google, and the tech industry as a whole. Mr. Damore’s comments came under intense public scrutiny when the internal memo was publicly leaked by a Google employee with whom it had been shared. Google’s CEO was forced to address the backlash in a public statement, and called Mr. Damore’s comments as “offensive” and “not OK.” The following day Mr. Damore was dismissed for “perpetuating gender stereotypes” which was counter to Google’s published value statements on workplace diversity.
Now, Mr. Damore’s attorney has filed a complaint with the National Labor Relations Board alleging that Google violated his rights as an employee under Section 7 of the National Labor Relations Act (“NLRA”). Section 7 of the NLRA guarantees employees the right to engage in “protected concerted activities” which can include circulating memos to other employees with the intent to improve working conditions or the terms or benefits of employment. Applying Section 7 to Mr. Damore’s memo is problematic, however, due to the lack of connection between his commentary excusing Google’s lack of gender diversity and no apparent motive to improve working conditions overall.
Some commentators, however, are taking note of a California law that could give some strength to Mr. Damore’s claims of wrongful termination. California Labor Code section 1102 makes it illegal for an employer to discharge, or threaten to discharge, an employees as a means of coercing or influencing employees’ political activities. Since Mr. Damore’s memo contained numerous appeals for Google’s upper management to consider more politically conservative ideological viewpoints in their decision-making, he may have a viable argument that he was engaging in protected political speech. Mr. Damore’s attorney has not, as yet, made this argument as part of his client’s complaint.
Employers Council will continue to track the court filings in this case and notify our members of any potentially precedent-setting outcomes. If your organization has concerns about its diversity policy or labor relations, in general, please contact Labor Relations for individualized guidance.