Can you be fired for expressing your political views? James Damore's case against Google

Can you be fired for expressing your political views? James Damore's case against Google


Can you be fired for expressing your political views? James Damore's case against Google 

            Former Google senior software engineer James Damore has tweeted less than 70 times as a member of the social media platform. Despite this paltry number, he has attracted nearly 80,000 followers. How has Damore, who has the Twitter handle “Fired4Truth”, gained such an immense following?

            In July, Damore wrote a 10-page memo entitled “Google’s Ideological Echo Chamber.” In it, he criticized his employer’s diversity initiatives as unfair because they create a “high priority queue and special treatment for ‘diversity’ candidates.” He also discussed explicit biases holding women back from leadership positions in the software engineering field. Damore wrote, “the distribution of preferences and abilities of men and women differ in part due to biological causes and that these differences may explain why we don’t see equal representation of women in tech and leadership.

He suggested that Google stop restricting programs and classes to certain genders or races, focus on psychological safety and not just race/gender diversity, and that the company have an open and honest discussion about the costs and benefits of the company’s diversity programs.

            The memo, though intended to remain internal, went viral after it was leaked. In a response sent to Google employees, Google CEO Sundar Pichai wrote that the company “strongly supports the right of Googlers to express themselves.” Despite this ability, Pichai claimed that through his memo, Damore was “advancing harmful gender stereotypes in the workplace.”[1] Soon afterwards, Damore’s employment was terminated.

            Damore has hired a legal team in preparation to sue Google, but a lawsuit has not yet been filed.[2] As we wait to see how this drama shall unfold, let’s discuss Damore’s potential legal remedies under federal and state law and his chances for success?

Federal Law

Right before his firing, Damore filed a complaint against Google with the National Labor Relations Board (“NLRB”).[3] This complaint alleges that Google’s response to Damore’s memo violated Section 8(a)(1) of the National Labor Relations Act (“Act”), which says, “It shall be an unfair labor practice for an employer…to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 of the Act provides employees with many rights, such as “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…

The strength of Damore’s NLRB complaint hinges on whether Google interfered with his rights to “engage in…concerted activities” under Section 7 by chastising and then firing him for publishing his views. For an administrative law judge to find that Google violated the Act, she must make two findings.

First, she must analyze his memo and determine whether, by writing and publishing this memo, Damore attempted to rally Google’s male employees against Google-sponsored diversity programs.[4] Such an attempt at drawing the attention of his fellow male employees to unfair treatment could be considered a protected form of “concerted activity” under Section 7. Second, the administrative law judge would have to find that Google knew of Damore’s activities and that it then intentionally interfered with activity protected under the Act.

This line of argument is a bit of a stretch for Damore since his manifesto reads much more like social commentary than a call to action. His memo, in fact, did not recommend that male Google employees engage in any specific action and did not even identify them as his target audience.

California Law

While federal law bans employment discrimination based on race, religion, sex, and national origin,[5] California goes beyond what is federally mandated in protection against employment discrimination. In fact, California is one of the few states that prohibits employer discrimination based on political activities or affiliations.

Two California statutes are relevant here, both passed in the early 1900s in response to increasing worker unionization and increasing laborer participation in political activities.[6]

Section 1101 of the state labor code provides that employers may not adopt or enforce any rules, “controlling or directing, or tending to control or direct the political activities or affiliations of employees.[7]

Section 1102 states that no employer “shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.[8]

California courts have interpreted these laws broadly in the past 50 years,[9] applying the policy underlying the statute that political participation is a fundamental principle of democratic society and as such, all workers should freely participate in political activities without worry of discrimination or retaliation.[10] Course have also broadly interpreted the term “political activity,” applying it to support for a “cause,” not just for a political candidate or party.[11]

An employer will not be liable if it can justify the firing with a “legitimate, apolitical reason.” The 2016 case, Couch v. Morgan Stanley, exemplifies this.[12] There, the plaintiff, a financial adviser employed full-time by Morgan Stanley, campaigned to become a member of the county board of supervisors. After winning a seat, Morgan Stanley informed him that he would have to make a choice and that he could not pursue both positions because the time commitment necessary for the supervisor position, 35 hours per week, was excessive. The firm fired him when he failed to commit to resigning his seat.

Couch sued, claiming violations of these laws, but his suit was dismissed. The appellate court reasoned that Couch was fired for “a legitimate, apolitical reason.” The court agreed with Morgan Stanley that he wasn’t fired because of his political campaign; he was fired because could not work as both a full-time financial adviser and a full-time county supervisor at the same time due to the time commitments required of each and potential conflicts of interest. 

Damore’s arguments have three possible bases. First, Damore discusses biases held by both conservatives and liberal commentators and his discussion on political viewpoints could easily be interpreted as a political activity. Second, Damore’s memo provides suggestions for diversity initiatives and how to balance political correctness with these initiatives, which suggests that he was writing for “a cause”. Third, he criticizes Google’s implementation of programs and classes and how these are being restricted to certain genders or races. His analysis includes the political costs and benefits of such programs. Since political activity is broadly interpreted by the California judiciary, his analysis could be construed to be protected political activity.

Google’s counterarguments would rely on assertions that Damore was fired for non-political reasons: to preserve internal stability within the company. They would argue that Damore’s expressed views would foment internal instability and tension between those supportive and those critical of Damore’s views. Google can support this assertion by showing that Damore’s memo and subsequent firing has sparked an array of reactions from Americans across the political spectrum. Those supportive of Damore believe that he was merely an employee discussing his opinions and that his firing demonstrates Google’s intolerance.[13] Those critiquing Damore suggest that Google was right to fire him for violating its policies and promoting internal conflict and instability.[14]  

Recently, Damore hired prominent conservative civil rights attorney Harmeet Dhillon to handle his legal claims. Dhillon has represented conservative students who sued University of California at Berkeley officials for engaging in practices that “stifle the speech of conservative students whose voices fall beyond the campus political orthodoxy.” There is little doubt that Damore can make a claim against Google for termination in response to his expressing political views. Whether he and his legal counsel will be successful in asserting violations of federal or state law and discrimination based on political views, is less clear.   


Footnotes

[1] Jen Chung, “Google Fires Engineer Who Wrote Controversial Anti-Diversity Memo”, SFist.com, http://sfist.com/2017/08/08/google_fires_engineer_who_wrote_con.php, August 8, 2017.

[2] John Sexton, “James Damore Is Preparing to Sue Google, His Attorney Wants More Employees to Come Forward”, hotair.com, http://hotair.com/archives/2017/08/23/james-damore-suing-google-lawyer-asking-employees-come-forward/, August 23, 2017.

[3] Jim Edwards, “James Damore has an ‘above decent’ chance of winning his legal case against Google”, Business Insider, http://www.businessinsider.com/james-damore-may-win-nlra-legal-case-google-2017-8, August 11, 2017.

[4] “Google Engineer’s Viral Memo Sparks Legal Questions”, Yahoo! Finance, https://finance.yahoo.com/news/google-engineer-apos-viral-memo-071656980.html, August 9, 2017.

[5] Eugene Volokh, “Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation”, 16 Tex. Rev. Law & Pol. 295, (2012).

[6] See Act of Apr. 10, 1915, ch. 38, 1915 Cal. Stat. 47

[7] Cal Lab Code § 1101.

[8] Cal Lab Code § 1102.

[9] Todd Dickey, “Reorienting the Workplace: Examining California’s New Labor Code Section 1102.1 and Other Legal Protections Against Employment Discrimination Based on Sexual Orientation”, 66 S. Cal. L. Rev. 2297, (1993).

[10] Id.

[11] Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 595 P.2d 592, (1979).

[12] Couch v. Morgan Stanley & Co., 656 Fed. Appx. 841, (2016).

[13] “Thoughts Bullies or Right Move: A Divide Over James Damore Firing”, The New York Times, https://www.nytimes.com/2017/08/10/technology/google-james-damore-memo-commentary.html, August 10, 2017.

[14] Id.