Can Google Get Away With It?
For any readers who don’t know about this case already, “it” refers to Google’s decision to fire an engineer because he posted a ten-page internal memo that took issue with some of the firm’s policies, especially its “diversity” stance.
(The text of the memo, written by James Damore, is available here, but note the misleading characterization of his writing as a “screed” – much of the leftist media treated Damore’s work as if it were something scarcely this side of Mein Kampf.)
In a nutshell, Damore, who says here that he wrote the memo after taking part in a Google diversity program, criticizes the way the company goes about fostering diversity. It’s calm, carefully worded, and supported by science. Nevertheless, it caused the company’s leadership to blow a gasket. Damore delenda est!
Google’s CEO, Sundar Pichai explained the company’s decision to terminate Damore, saying that while “we strongly support the right of Googlers to express themselves,” Damore’s affiliation with the company could no longer continue because “portions of the memo cross the line by advancing harmful gender stereotypes in our workplace.”
This is reminiscent of the old Soviet Union, where people who dared to think were apt to be labeled “deviationist” and sent to Siberia. Because he dared to question some aspects of Google’s diversity mania, Damore is a deviationist. He can’t be sent to Siberia, but he can be fired, never again to either use his evident engineering talents for Google or make other Googlers feel hurt or afraid because there’s a dissident lurking around.
Many people are asking this $64,000 (or perhaps more like $64 million) dollar question: Does Damore have a legal case against Google.
Some people think he does.
In this post on Liberty Unyielding, lawyer Jerome Woehrle, points out that under Title VII of the Civil Rights Act of 1964, individuals who complain about discrimination by an employer are protected against retaliation. “Title VII,” he writes, “has been interpreted by the courts as protecting people from being fired for protesting perceived reverse discrimination – even when that discrimination turns out to be legal.”
Damore certainly was complaining about employer discrimination. He wrote, “Discrimination just to increase the representation of women in tech is just as misguided and biased as mandating increases for women’s representation in the homeless, work-related violent deaths, prisons, and school dropouts.”
It doesn’t matter, either morally or legally, that Damore’s argument is against “reverse discrimination.” The Civil Rights Act does not pertain only to women and minorities, as the Supreme Court made clear in its 1976 decision in McDonald v. Santa Fe Trail Transportation,where it held that Title VII covers all Americans.
Another lawyer who thinks that Damore could prevail is Margot Cleveland, an adjunct professor at Notre Dame Law School. In her article, “James Damore Has Solid Grounds to Sue Google for Discrimination,” she notes that he may very well have a case under the National Labor Relations Act, which protects workers against retaliation when they have engaged in concerted activities to improve their working conditions. No, Damore wasn’t trying to organize a union, but the law is not written so as to cover only those workers who are trying to improve their working conditions through unionization.
“If Damore collaborated with others in publishing his memo,” Cleveland writes, “that could quality as a ‘concerted activity’ protected by Section 7 of the National Labor Relations Act….Firing someone for engaging in concerted activities is illegal, and Damore seems primed to push this legal theory.”
Furthermore, Cleveland reinforces Jerome Woehrle’s argument that in firing Damore, Google has violated the Civil Rights Act. In his memo, he argued that Google uses “several discriminatory practices.” She thinks that is crucial. “Damore can present a prima facie case of illegal retaliation: he engaged in protected activity by opposing discriminatory practices and was fired from his job. The close temporal nexus creates an inference that Google fired him because of his opposition to illegal discrimination.”
Of course, if Damore sues, Google would have its crack legal team seek to have the case dismissed, but Cleveland thinks the company will be in serious trouble if the case gets to a jury. She writes, “Once before a jury, Google will be hard-pressed to justify Damore’s firing because the jury will be force-fed the actual words Damore wrote, not the press’ hysterical gloss.”
So the answer to the “does he have a case” question seems to be “yes.”
Whether or not Google loses in court over its harsh treatment of a once-valued worker who was speaking his well-informed mind on important matters relating to company policy, It is apt to suffer in the public mind. Elaine Ou, herself a Silicon Valley engineer, nails the point on Bloomberg View:
Suppressing intellectual debate on college campuses is bad enough. Doing the same in Silicon Valley, which has essentially become a finishing school for elite universities, compounds the problem. Its engineers build products that potentially shape our digital lives. At Google, they oversee a search algorithm that seeks to surface “authoritative” results and demote low-quality content. This algorithm is tuned by an internal team of evaluators. If the company silences dissent within its own ranks, why should we trust it to manage our access to information?
Finally, here is a bit of free legal advice to Google: Don’t mislead people who want to work for you by saying that the company values their ideas and encourages the free exchange of ideas. Tell them the truth, which is that politically incorrect deviationism is not tolerated. Google wants an ideological monoculture and should say so.
Originally published on Forbes.
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