Many of you have read or heard about the recent “Google memo” dispute. An employee of the search engine company named James Damore circulated an internal ten-page memo to Google’s other employees that has since gone viral and created a great deal of public discussion, especially after Google fired him based on the views he expressed. Regardless of what you may think of the views espoused by Mr. Damore in the memo, his conduct, and Google’s reaction to it, implicates important issues under both Title VII of the Civil Rights Act of 1964 and Section 7 of the NLRA.
As a brief background, the memo concerned diversity-related topics at the company, including the gender gap both at Google and in the broader tech industry. Among other things, the memo presented sourced material about unconscious biases across the political spectrum and suggested some “non-discriminatory ways to reduce the gender gap” by introducing greater levels of collaboration and eliminating training and mentoring programs that were focused on employees of a certain gender or race. What seemed to be most provocative, however, were Damore’s assertions that:
- women are more neurotic and prone to anxiety than men;
- women shy away from the tech industry because they “relatively prefer jobs in social or artistic areas”;
- there are innate IQ differences between men and women;
- “[n]early every difference between men and women is interpreted as a form of women’s oppression”; and
- he was wrongfully labeled as part of a “‘white, straight, cis-gendered patriarchy’” that was analogous to the criticisms levied by the Communist movement.
Google opted to fire Damore for violating its Code of Conduct, and Google CEO Sundar Pichai also sent a company-wide e-mail (shown at the bottom of the linked article) explaining the decision. Pichai explained, on one hand, that “there are co-workers who are questioning whether they can safely express their views in the workplace (especially those with a minority viewpoint),” and that “that is [] not OK” because “[p]eople must feel free to express dissent.” To that end, Pichai explained, “many points raised in the memo — such as the portions criticizing Google’s trainings, questioning the role of ideology in the workplace, and debating whether programs for women and underserved groups are sufficiently open to all — are important topics” that should merit further discussion.
On the other hand, Pichai informed employees, “portions of the memo . . . cross[ed] the line by advancing harmful gender stereotypes in our workplace.” Thus, “[t]o suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK.”
Since his termination, Damore has given an interview in which he compared himself to “being gay in the 1950s” because he perceives himself as a victim of a “monolithic culture where anyone with a dissenting view can’t even express themselves.” While it remains to be seen whether Damore will choose to express himself via litigation, the termination is an excellent illustration of the legal dilemma employers face when addressing such situations.
Title VII Issues
Title VII makes it unlawful to discriminate against employees who “oppose[] any practice made an unlawful employment practice” under the law. 42 U.S.C. § 2000e-3(a). In other words, complaints about workplace discrimination constitute Title VII protected activity. Indeed, it is not essential that the complained-of conduct actually be unlawful discrimination; what matters from a legal perspective is that the complaining party has a good-faith, reasonable belief that there is unlawful discrimination. On the other hand, not all complaints are protected activity.
In this case, the portions of Damore’s memo discussing the relative dearth of opportunities for women in the tech industry arguably fall under Title VII’s purview. However, Damore’s comments about gender stereotypes clearly fall outside of those protected categories. Thus, just as race discrimination is illegal while “racism discrimination” is not, there is a difference between gender discrimination and “sexism discrimination,” the latter of which Damore’s memo includes.
NLRA Issues
Section 8(a) of the National Labor Relations Act (NLRA) bars employers from discriminating against employees who exercise their “Section 7” rights by engaging in concerted protected activity, such as complaining about the terms and conditions of employment. The employee protections have often been read quite broadly in favor of workers who say things that clearly are not protected by Title VII.
Recently, the Eighth Circuit held in a 2-1 decision that an employee who made offensive racial remarks (“Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.”) to African-American employees while picketing during a strike was not only protected by the NLRA, but entitled to reinstatement. The Court rejected the employer’s claim that Title VII required it to terminate the speaker because that law only requires that employers take “prompt remedial action reasonably calculated to end the harassment.” The Court also relied on similar cases that had reversed terminations for employees who screamed “f*** you n*****” while picketing and who grabbed their crotch while yelling “f*** you.” Charming, all around. Judge Beam wrote a blistering dissent that began, “No employer in America is or can be required to employ a racial bigot.” and would readily have concluded that the comments do not, in any way, vindicate union rights as the NLRA is intended to accomplish.
Outside of the picketing context, the standard for general workplace complaints or grievances and whether they have crossed the line outside of protected NLRA activity is governed by the four Atlantic Steel factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Here, because Damore’s memo was a workplace discussion that went well beyond workplace-related concerns (by veering into gender stereotypes about all women, as opposed to female Google employees or applicants) and suggested genetic deficiencies about a substantial portion of the workforce, his conduct very may very well fall outside of Section 7’s protections.
What does this all mean? Workplace diversity issues are often emotionally fraught topics. Having employees engaged and in discussion with one another about such topics is useful and can make each individual feel valued, but it also presents a minefield when one or more employees come forward with complaints about a hostile work environment. Additionally, an employee’s Section 7 right to protest working conditions may, at times, conflict with the obligation to take prompt remedial action under Title VII. With regard to the latter point, let’s hope that the new NLRB will provide guidance to help employers perform this delicate balancing act!