Ex-Employee Faces Legal Obstacles -- WSJ
August 09 2017 - 3:02AM
Dow Jones News
By Jacob Gershman and Sara Randazzo
This article is being republished as part of our daily
reproduction of WSJ.com articles that also appeared in the U.S.
print edition of The Wall Street Journal (August 9, 2017).
The Google engineer fired for writing a memo asserting
biological causes behind the tech gender gap is likely to face
significant hurdles in any legal action against his ex-employer,
experts say.
Software engineer James Damore has said he is exploring "all
possible legal remedies" after Google fired him late Monday over a
leaked memo he wrote suggesting that women are less suited for tech
careers than men and that Google's diversity efforts are too
concerned with sexism. He already has filed a formal complaint with
the federal agency that investigates labor practices.
In responding to any legal claim, Alphabet Inc.'s Google could
argue that it took action to prevent a hostile work environment for
women and to avoid workplace or customer disruptions, employment
lawyers said. Those interests could very well outweigh Mr. Damore's
rights, according to the experts.
Already, Google appears to be framing such a potential legal
defense in response to the firing.
In a staff email Monday, Google Chief Executive Sundar Pichai
said portions of Mr. Damore's memo violate the company's code of
conduct and "cross the line by advancing harmful gender stereotypes
in our workplace."
Private employees have fewer rights to speak their mind at work
than government-employed workers, who are protected by the First
Amendment.
"You have a right to work in a workplace free of
discrimination," said plaintiffs' employment lawyer David Sanford
in Washington, D.C. "You don't have the right to say whatever pops
into your head."
Mr. Damore has said that, prior to losing his job, he filed a
formal complaint with the National Labor Relations Board, which
enforces federal labor law. He said that the complaint was prompted
by Google executives' criticism of the memo and that he has a right
to express "concerns about the terms and conditions of [his]
working environment and to bring up potentially illegal
behavior."
The National Labor Relations Act deals predominantly with
collective bargaining or union organizing but also protects the
rights of nonunion employees to act together to improve their
working conditions.
Thomas Jefferson School of Law Prof. Susan Bisom-Rapp, who
researches employment discrimination law, said while she disagreed
with Mr. Damore's views, she could envision potential legal
arguments he could make to invoke the NLRA.
That Mr. Damore's letter doesn't appear to be drafted in concert
with other Google employees doesn't in itself mean the law cannot
be invoked. Protections can be triggered by a single employee
trying to rally colleagues around a wider workplace issue.
Mr. Damore could try to argue that he's "protected in expressing
himself in an effort to engage in dialogue with co-workers about
Google's diversity efforts," said Prof. Bisom-Rapp.
However, "an employee gripe or complaint standing alone, without
that call to fellow employees to gather together, is not enough,"
said Julie Totten, an employment defense lawyer with Orrick,
Herrington & Sutcliffe LLP in Sacramento.
Labor law also forbids employers from firing a worker for
alleging an unfair labor practice, making the timing of Mr.
Damore's formal complaint potentially relevant in a legal dispute,
said Prof. Bisom-Rapp.
Legal experts said federal antidiscrimination law could offer
Mr. Damore another possible, albeit narrow, legal avenue. His memo
suggested Google is engaging in reverse discrimination, citing
"special treatment for 'diversity' candidates." Title VII of the
1964 Civil Rights Act bans employers from retaliating against
workers for complaining about unlawful workplace
discrimination.
"You would have to show what Google is doing is illegal. That
would be difficult," said Prof. Matt Bodie, an employment law
scholar at Saint Louis University Law School and a former NLRB
field attorney.
The NLRB generally doesn't impose remedies beyond reinstatement
of employment and back pay, Mr. Bodie said.
California, like a number of states, also gives workers rights
to engage in political activity.
California courts have defined political activity broadly to
cover not just speech about candidates, parties or laws, but the
active promotion of a cause. It is unsettled, though, whether it
protects on-the-job speech or just speech expressed outside of
work.
Write to Jacob Gershman at jacob.gershman@wsj.com and Sara
Randazzo at sara.randazzo@wsj.com
(END) Dow Jones Newswires
August 09, 2017 02:47 ET (06:47 GMT)
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