A culture of openness
In a companywide email, Google’s chief executive, Sundar Pichai, said portions of the memo had violated the company’s code of conduct and crossed the line “by advancing harmful gender stereotypes in our workplace.”
The memo put the company in a bind. On one hand, Google has long promoted a culture of openness, with employees allowed to question senior executives and even mock its strategy in internal forums. However, Google, like many other technology firms, is dealing with criticism that it has not done enough to hire and promote women and minorities.
Of course, questioning senior executives is one thing and announcing that women are inherently, as a matter of “biology,” not good enough to work at Google is another.
In an email titled “Our Words Matter,” Mr. Pichai said that he supported the right of employees to express themselves but that the memo had gone too far.
“The memo has clearly impacted our co-workers, some of whom are hurting and feel judged based on their gender,” Mr. Pichai wrote. “Our co-workers shouldn’t have to worry that each time they open their mouths to speak in a meeting, they have to prove that they are not like the memo states, being ‘agreeable’ rather than ‘assertive,’ showing a ‘lower stress tolerance,’ or being ‘neurotic.’”
Especially since having to worry about that uses up brain space that they could be using for work.
James Damore, the software engineer who wrote the original memo, confirmed in an email to The New York Times that he had been fired. Mr. Damore had worked at Google since 2013. He said in his memo that he had written it in the hope of having an “honest discussion” about how the company had an intolerance for ideologies that do not fit into what he believed were its left-leaning biases.
What ideologies are those? The ones that hold that “group X is ON AVERAGE [emphasis theirs] bad at the skills this job requires” and that therefore “the fact that fewer Xs work here is not something that needs to be corrected.”
In other words, the same old shit, dressed up in pseudo-intellectual language. There are more men in this company because men are better. There are more white people in this company because white people are better. We are better than you. Go away.
In other words, as Yonatan Zunger put it, a textbook hostile work environment.
Sure, Google could say we think a hostile work environment is worth it for the sake of open discussion. There’s certainly a lot of value in open discussion, and a work environment that encourages it. But…there’s also a lot of value in a work environment comparatively free of that particular brand of contempt.
Mr. Damore, who worked on infrastructure for Google’s search product, said he believed that the company’s actions were illegal and that he would “likely be pursuing legal action.”
“I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does,” Mr. Damore said.
Hmm. I’m not a lawyer, to put it mildly, but I doubt that. It sounds far too sweeping to be true. I doubt that anyone has a “legal right” to circulate, for instance, a bluntly racist or sexist memo full of epithets and memes and Pepe the frogs. Mr. Damore didn’t do that, but he didn’t just circulate a memo about his oncerns about the terms and conditions of his working environment, either. He circulated a memo that expatiated at great length on what is is about women that makes Google fail to hire them. Does he have a legal right to do that? I don’t know, but I have my doubts.
Before being fired, Mr. Damore said, he had submitted a complaint to the National Labor Relations Board claiming that Google’s upper management was “misrepresenting and shaming me in order to silence my complaints.” He added that it was “illegal to retaliate” against an N.L.R.B. charge.
And another martyr for men’s rights takes the stage.
It’s not Illegal though; Google like almost any other company has a comprehensive non-discrimination policy by which all their employees (and customers) are bound, and since women are a federally protected class that’s even doubly true.
Over privileged jackass will find himself in the same place as that guy suing the GOP over Obamacare…
Interesting. I’m seeing a lot of people exclaiming about free speech – so are they all just clueless about the pervasiveness of non-discrimination policies?
Real question. I know very little about this.
He has hired a lawyer, apparently, who is citing pro-union labor law in defense of the Joe Manifesto’s actions. He’s just trying to better his working conditions, see? B*tchez are harshing his buzz with their griping and complaining. Also, lots of people thanked him for his courageous stand — which means he’s representing others in a concerted action to improve working conditions by reporting what he believes, in good faith, to be a violation of anti-discrimination law.
They’re clueless about a few things. Employers aren’t bound by the first amendment. Also, California has employment-at-will with only defined exceptions — basically CA employers can fire anyone for any reason as long as they’re not violating the law, violating an (express or implied) contract, or somehow dealing in bad faith. Since Mr. Manifestoo signed their anti-discrimination policy, it’s he that’s violating the contract, not Google. So his suit is lost before it begins.
I suppose they could all think non-discrimination policies are deeply wrong, but I’m not sure all of them do think that.
I’m seeing claims like this
from reasonable people, and I’m wondering if they really think that. No matter what the opinion is? No matter whom it’s expressed to no matter how often?
I’ll see if I can shed some light on things:
First, it’s definitely not a First Amendment issue, for reasons I think have been well-discussed, i.e. the 1st Amendment applies only to “state action,” and Google is a private employer.
There is, however, a federal statute — the National Labor Relations Act — which is the labor law issue A Masked Avenger references @3. Although people generally think of the NLRA as having to do with unions, and specifically protecting speech related to union organization, it is in fact broader than that. Here is a good explanation:
If you read the entire article at that link, you’ll see a discussion of some recent cases, including one from the Second Circuit Court of Appeals (which isn’t binding authority in the Ninth Circuit, where this Google lawsuit would presumably be filed) where an employee’s post on Facebook that Bob, his supervisor “is such a NASTY M***** F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!!” was held to be protected speech under the NLRA.
This is a still-developing area of law — even though the Act has been around for a long time, I think lawyers have only recently been pushing the boundaries of what speech falls within its protection, and courts are still sorting it out. Also, the National Labor Relations Board plays a large role in interpreting the NLRB, and who knows how its position will change under the Trump Administration. I’m not very familiar with where the boundaries are.
But I’m pretty confident in saying that AMA’s suggestion @4 that California’s at-will employment presumption, and/or the employee signing off on Google’s policies, would bar this action, is incorrect. The NLRA is federal law, and assuming it covers Google (which it almost certainly does), it supersedes any state law that may apply — just as federal anti-discrimination law provides a remedy even in “at-will” states. Nor can you generally bargain away those statutory protections, except in some instances as part of a valid collective bargaining agreement. Again, if an employer got its employees to sign contracts that say “you agree that we may discriminate against you based on race, gender . . .” that would not be a valid waiver of or defense to a claim.
Last, the significance of anti-discrimination laws as a possible defense to Google strikes me as plausible but a little tricky. I don’t know offhand if there’s any precedent that says that speech that an employer fears may create a hostile work environment is exempt from NLRA protection, though it stands to reason that one should exist: an employer should not be stuck in a situation where it is liable under anti-discrimination laws if it doesn’t punish speech but liable under the NLRA if it does. I’d be interested in finding out more from labor law practitioners.
Especially as to how the analysis would shake out in the case of this memo. It was, at least in part, a discussion of what Google’s personnel policies should be, and that suggests that it may be eligible for NLRA protection. On the other hand, I think the former Google exec explained very well how this memo creates an obvious problem for an employer. If the law requires an employer to sit on its hands when an employee says “minority group X are all [insert negative stereotypes” as long as he or she tacks on a “and therefore we shouldn’t hire or promote any,” then the law is an ass — and courts usually try pretty hard to avoid interpreting the law in such a way.
Overall, my gut take is that Google probably has the better side of this case, but I wouldn’t say that the employee’s suit is frivolous or “lost before it begins.”
Thank you. That is highly informative.
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