INNOVATION

Fired Google Engineer Claims His Rights Were Violated. Trump's Labor Board May Disagree

09/08/2017 8:52 AM AEST | Updated 09/08/2017 9:07 AM AEST
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WASHINGTON ― Google engineer James Damore was fired Monday after he penned an explosive memo arguing that biological differences explain why women are underrepresented in Silicon Valley. Damore claims the tech giant broke the law by dismissing him, and says he plans on ”pursuing legal action” against the company.

Damore may want to brush up his resume and send it over to his sympathizers at Breitbart. His odds of legally winning back his job at Google look pretty slim, according to labor lawyers.

In a note to Google employees, CEO Sundar Pichai said that Damore’s memo ― a missive against diversity and the company’s liberal “ideological echo chamber” ― ran afoul of Google’s code of conduct and advanced “harmful gender stereotypes in our workplace.” Damore countered to The New York Times that he has “a legal right to express my concerns about the terms and conditions of my working environment” without being punished.

Damore appears to be referring to protections afforded by the National Labor Relations Act, the Great Depression-era law covering collective bargaining in the private sector. Reuters reported that Damore had filed a complaint against Google under the act even before he was fired, claiming the company had tried to silence him.

The act gives all workers ― not just those in unions ― the right to take part in “protected concerted activity” to improve their working conditions. But that doesn’t mean it will protect Damore and his memo.

Protected concerted activity must be carried out, well, in concert ― that is, as an effort to band together as employees. The National Labor Relations Board, which referees such disputes, sometimes takes a broad view of what constitutes such activity. For his case to succeed, Damore’s memo would have to come off as more than just a personal grievance.

“The NLRA doesn’t protect ‘mere griping,’” Charlotte Garden, a professor specializing in labor law at the Seattle University School of Law, said in an email. “Usually, ‘mere griping’ looks like standing around the water cooler and complaining about an employer policy, without attempting to move towards some sort of group action. The memo strikes me as a more expansive version of that.”

“It would be another story if the memo called on like-minded employees to do something ― even if nobody heeded the call,” she said.

Lucy Nicholson / Reuters

In his memo, Damore said he wanted to foster an “open and honest discussion.” If that isn’t enough, he could also argue that a call for concerted activity was inherent in the document, said Wilma Liebman, a former chairwoman of the labor relations board.

“I suppose if he wanted to make a case, he could argue, ‘Why would I go to all the trouble expressing these views if I wasn’t looking for people to join me or engage me in a dialogue on this?’” Liebman said. This argument is “certainly not a slam dunk,” she added, since a judge and board members could still read Damore’s memo as little more than a monologue.

Damore implied, in his comments to Reuters, that Google fired him because of the unfair labor practice charge he filed with the labor board. That would be illegal retaliation by the company, if it were the case.

But given Pichai’s note to employees, the company’s officials presumably would respond that Damore he was fired because of his memo ― not because he ran to the labor board during the dustup. And the burden would be on Damore to prove otherwise.

Officials for Google, based in Mountain View, California, did not immediately respond to a HuffPost request for comment.

Damore also lamented in his memo that Google’s workplace is biased toward conservatives, “a minority that feel like they need to stay in the closet to avoid open hostility.”

California does have a state law protecting workers from political discrimination in the workplace. But again, the Google executives presumably would say they fired Damore because his memo ― among other things, he said women were prone to more “neuroticism” ― and not because of his political views. 

“I think the company had to do what it did.” Paul Secunda, a professor of labor law at Marquette University Law School

Damore could try to bring a claim of sex discrimination under Title 7 of the Civil Rights Act, which prohibits workplace discrimination based on race, color, religion, gender and national origin. The law protects men just as well as women.

But Paul Secunda, a professor of labor law at the Marquette University Law School in Wisconsin, said this argument probably wouldn’t fly, since Google could point to a legitimate, non-discriminatory reason for firing Damore ― like wanting to rid its workplace of toxic stereotyping for legal as well as ethical resaons.

“I think the company had to do what it did,” Secunda said. “In terms of weighing the costs and benefits, it would cost way more to do nothing.”

In seeking recourse through the National Labor Relations Board, Damore may have given his critics on the left reason to revel in some irony. Silicon Valley doesn’t care much for unionism, and Damore, who in a memo footnote says he “strongly value[s] individualism,” is now seeking relief from a collective bargaining law typically relied upon by union organizers.

It also may not help Damore that the board will soon have a conservative majority nominated by President Donald Trump. Employers ― and conservative media ― have blasted the board for taking what they saw as an overly expansive view of worker rights under former President Barack Obama.

“I don’t think that charge was justified, but in any event, the Trump board is likely to take a more narrow view,” said Garden, the Seattle University law professor. “So I think the engineer would have an uphill climb even before the Obama board, but his chances are even worse now.”

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