Google's Firing Line

Experts weigh in on whether the tech giant made the right choice in firing the engineer who wrote what many considered to be an anti-diversity internal memo.

By Carol Patton

All James Damore claims he wanted to do was improve Google's culture and try to make the world a better place.

The Google engineer was fired last week for violating the company's code of conduct. Damore posted his 10-page manifesto on a company message board that many consider sexist and anti-diversity because it states that biological causes are why there's a lack of women in technology. In a recent Bloomberg interview, he spoke out against his former employer, stating, "I'm definitely hurt . . . . It really feels like they betrayed me . . . . They shamed me."

He has since filed suit against Alphabet -- Google's parent company under a section of the National Labor Relations Act that deals with protecting statements made by workers' rights activists about pay, practices and conditions, mainly in an effort to unionize. Damore's claim is multi-fold: that employees use the message board to discuss a variety of issues, that he posted his opinions on this topic one month ago, discussed it with others and updated his comments along the way. He also maintains that no one in upper management commented about his posts until they went viral.

"It's going to be a question of whether he goes too far, criticizing or denigrating women on the basis of gender," says Ben Huggett, partner at Littler Mendelson law firm in Philadelphia. "We have [federal] laws against gender and sexual harassment discrimination. But the NLRA doesn't [require employers] to have a policy against sexual harassment or gender discrimination. Those will be two competing interests that come up."

Whether Damore wins his case depends on several factors, says Huggett, including whether the company's HR department routinely monitors online conversations on its message board. Was any employee ever restricted from expressing views that didn't reflect the company's culture or brand? Unless Damore's online conduct was "truly outrageous," Huggett believes it will be difficult for Google to defend its position.

It's important for HR professionals to avoid knee-jerk reactions when confronted with this type of situation, Huggett says. Review your anti-harassment policy. Does it spell out what's covered and what's not as acceptable content on message boards? Just be careful not to cross lines governing free speech. In conjunction with legal counsel, review comments made by the National Relations Labor Board about various cases over the years to determine what constitutes acceptable and unacceptable limitations.

"Employees don't have a First Amendment right in the private sector but the NLRB is [their] backstop," says Huggett. If employees posted endless comments about diversity on this message board and HR singled his out, he says, that "may be problematic."

However, HR at Google could have chosen alternate routes that may have prevented this fiasco. For example, HR could have converted this scenario into a teaching moment, says Timm Schowalter, partner at the Sandberg Phoenix & von Gontard law firm in St. Louis.

HR could have publicly condemned Damore's comments, he says, and then used his message-board post as the basis for a company-wide discussion or during training opportunities focusing on diversity and inclusion.

Schowalter says he's not a supporter of strong company policies that restrict employee speech. "I'm not a big fan of crafting any policy that limits [speech] because I guarantee the NLRB will find it unlawful," he says.

HR also needs to conduct a cost-benefit analysis of each alternative, Schowalter says. But first, it must determine if building an EEO compliant culture that observes a zero-tolerance policy regarding all forms of discrimination ranks among your company's top priorities. If so, he says, then firing an employee for engaging in such behavior would send a strong message to your workforce, applicants, vendors and the community about a company's firm stance on diversity. But, he cautions, lawsuits claiming unlawful termination and related penalties or fines should be expected.

"My No. 1 rule for HR is that if there's an opportunity that presents itself to assert your EEO and zero-tolerance [policies], then assert them," says Schowalter. "If you don't, you'll get yourself in a trick box where if you condone [anti-discrimination behavior], it can be utilized against you."

Considering the huge amount of employee and public backlash directed toward Damore's memo, Google had to take some sort of serious and public action, says Sage Knauft, partner at Walsworth law firm in Orange, Calif.

However, from a legal perspective, he says, terminating Damore may have been a bit drastic. He says the company could have involved its diversity committee or department, or even form employee focus groups to spark discussions and identify appropriate solutions.

"To a certain extent, [Damore] has a right to his views and opinions," says Knauft, adding that Damore can also file a legitimate claim under California's Fair Employment & Housing Act, stating that he was let go for expressing his views on gender discrimination in the workplace. "Maybe [HR] could have given him a warning or suspension, something short of termination."

He says there isn't a bright line that governs employee speech. Employers need to develop some mechanism that allows employees to discuss their views, no matter how unpopular.

"[Damore's] biggest complaint is that basically there's this echo chamber where everybody tells him how he has to think," says Knauft. "Any way to increase the dialogue and allow different viewpoints to be heard within the greater goal of creating a more diverse workforce is something that should be considered."

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Aug 16, 2017
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