Google’s firing of engineer James Damore over his controversial memo criticizing the company’s diversity policies and “politically correct monoculture” did not violate U.S. labor law, a federal agency lawyer concluded.
Statements in Damore’s 3,000-word memo “regarding biological differences between the sexes were so harmful, discriminatory, and disruptive” that they fell outside protections for collective action in the workplace, an associate general counsel for the National Labor Relations Board wrote in a six-page memo disclosed Thursday.
by Kate Conger, Feb 2018
Google did not violate labor law by firing James Damore, the author of a memo that argued women were biologically less capable to work in software engineering than men, according to an attorney for the National Labor Relations Board.
…According to a memo written by NLRB attorney Jayme Sophir, Google was careful to note that it was firing Damore for his discriminatory comments, rather than his criticisms of Google’s diversity and inclusion efforts. The NLRB determined that, while his critique of Google was protected by law, his discriminatory statements were not—and that Google was therefore within its rights to fire him.
The NLRB memo includes talking points that Google prepared and read over the phone to Damore when he was fired. “I want to make clear that our decision is based solely on the part of your post that generalizes and advances stereotypes about women versus men,” Google’s talking points stated. “I also want to be clear that this is not about you expressing yourself on political issues or having political views that are different than others at the company. Having a different political view is absolutely fine. Advancing gender stereotypes is not.”
Prior to his firing, Google HR received numerous complaints about the memo, Sophir noted, and at least two women who had interviewed for engineering jobs at the company withdrew themselves from consideration, citing Damore’s memo as the reason they didn’t want to work for Google.
Damore’s memo “argued that there were immutable biological differences between men and women that were likely responsible for the gender gap in the tech industry,” Sophir wrote. “Employers have a strong interest in promoting diversity and encouraging employees across diverse demographic groups to thrive in their workplaces. In furtherance of these legitimate interests, employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,’ rather than waiting until an actionable hostile workplace has been created before taking action.”
Damore’s memo constituted sexual harassment, the NLRB found, despite his efforts to “cloak comments with ‘scientific references’” and his “‘not all women’ disclaimers.”
The former senior software engineer was fired from Google in August after internally circulating a ten-page memo arguing in part that women are not as biologically suited for coding jobs as men.
After he was terminated, Damore filed a complaint with the NLRB, arguing that Google had violated his right to participate in protected activity, namely addressing problems in his workplace. The NLRB memo disagrees with Damore’s complaint, and recommends dismissing it, were it not withdrawn.
…Sophir [attorney] concluded that Damore’s memo contained both protected statements (like criticizing Google) and not protected statements (perpetuating stereotypes about women), and that Google ultimately fired Damore for things he said that were not protected under federal law. Sophir wrote in her memo that workplaces should have the ability to “‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace.'”
She also said that Damore’s statements about women in his memo “were discriminatory and constituted sexual harassment, notwithstanding effort to cloak comments with ‘scientific’ references and analysis, and notwithstanding ‘not all women’ disclaimers. Moreover, those statements were likely to cause serious dissension and disruption in the workplace.” Sophir’s memo also cites two instances in which women withdrew their candidacy for engineering positions at Google after learning about the existence of Damore’s memo.