If you somehow missed the brouhaha caused by Google Engineer James Damore’s Echo Chamber Memo, you are living under a rock. Google’s CEO cut his vacation short to address the maelstrom, and Even Anita Hill has come out of the woodwork to encourage women to sue their tech employers.
Google’s decision to fire Damore over the Echo Chamber Memo (linked in its entirety here) raises plenty of questions, but these are the most interesting:
- Exactly what internal discussion did the Google Echo Chamber Memo provoke?
- And, given that Damore has filed a charge of retaliation with the National Labor Relations Board (“NLRB“), did Google violate his rights under Section 7 of the National Labor Relations Act (“NLRA“)?
Among other things, the NLRA guarantees employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and it prohibits employers from taking steps to prevent employees from trying to exercise that right.
So what are concerted activities? Does the Echo Chamber Memo qualify?
When people think of the NLRB, they generally think of unions. However, the NLRA is much broader than that. Protected, concerted activity can be something as simple as employees discussing a disagreement with a co-worker on Facebook, as the NLRB ruled in Hispanics United of Buffalo, Inc. and Carlos Ortiz., 359 NLRB No. 37 (Dec. 14, 2012). Discussions concerning the terms and conditions of employment remain protected even if the employees use language that is offensive and embarrassing to the company. See NLRB v. Pier Sixty, LLC, No. 15-1841 (2d Cir. Apr. 21, 2017).
Damore’s Echo Chamber Memo appears to be “copncerted activity” because it solicits a discussion from other Google employees. The first words of the memo are “feel free to comment (they aren’t disabled, the doc may just be overloaded). For longer form discussions see g/pc-harmlul-discuss.” Further, news reports indicate that the memo went “internally viral,” meaning that it actually triggered discussion within Google. According to Motherboard:
The 10-page Google Doc document was met with derision from a large majority of employees who saw and denounced its contents, according to the employee. But Jaana Dogan, a software engineer at Google, tweeted that some people at the company at least partially agreed with the author; one of our sources said the same (Dogan’s tweets have since been deleted).
Language used throughout the memo invites discussion, including several implicit acknowledgements by Damore that others would hold legitimate dissenting views:
- “People generally have good intentions, but we all have biases which are invisible to us. Thankfully, open and honest discussion with those who disagree can highlight our blind spots and help us grow, which is why I wrote this document.”
- “Of course, I may be biased and only see evidence that supports my viewpoint. In terms of political biases. I consider myself a classical liberal and strongly value individualism and reason. I’d be very happy to discuss any of the document further and provide more citations.”
The content of the Echo Chamber Memo concerns the policies by which Google hires, trains, and promotes engineers, which may place it squarely in the category of concerted activity protected by NLRA Section 7. For example, Demore questions whether Google is discriminating illegally by, for example, creating exclusive “[p]rograms, mentoring, and classes only for people with a certain gender or race.” If he legitimately believed males were being passed over for promotion because of their gender, his call for discussion may be protected.
That said, the Echo Chamber Memo may not be a genuine call for discussion. If, for example, Damore had an ulterior motive, such as a desire to provoke anger from co-workers for his own amusement, then his actions may not be protected.
Google may have other legitimate reasons to fire Damore. There is no telling what lurks in his personnel file, his company email, or his browser history. Moreover, Damore has certainly demonstrated questionable judgment. As a federal contractor, Google is required to maintain an affirmative action plan. The Office of Federal Contract Compliance Programs (“OFCCP“) is currently suing Google for allegedly violating its affirmative action obligations by paying women less than men. No clear-thinking employee would publish a memo suggesting that women are, on average, biologically inferior at tech jobs while their employer was being sued by the federal government for gender discrimination.
In the end, it remains to be seen whether Damore’s NLRB charge will have teeth. So much depends upon the facts, and the facts cannot be known until Damore and Google make their positions public.
So what lessons can you learn from Google’s predicament in the interim?
- If you run a company, make sure you have an Employment Practices Liability Insurance (“EPLI”) policy that pays for legal counsel of your choosing;
- Before you fire an employee for having a “Jerry McGuire” moment, call your lawyer; and
- Determine how much you actually stand to lose by violating an employee’s NLRA Section 7 rights.
It may be that Google loses the NLRB claim but wins the OFCCP discrimination suit, and that very well could be a net positive. What do you think?
— Freed Howard LLC (@FreedHoward) August 10, 2017