Earlier this month, Google software engineer James Damore forwarded a 10-page memorandum to his coworkers via employee forums and email. The memo complained that Google had a left-leaning political bias; explained that he believed the gender achievement gap was driven by personality differences between men and women (for example, he argued that women were less assertive than men and that, while men desire to achieve status in their careers, women, on average, are more interested in maintaining “work-life balance” and seeking a fulfilling life outside of work); and expressed concern that Google’s diversity practices have led to several discriminatory practices, including hiring less qualified candidates to meet diversity goals and operating mentoring programs and classes only for people of a certain gender or race.
In response to the memo, Google CEO Sundar Pichai cut his vacation short, returned to Google, and immediately terminated Damore for “perpetuating gender stereotypes” and violating Google’s Code of Conduct. Damore has now stated that he is considering legal action against Google for wrongful termination. So, what types of claims might Google face and what are the legal risks associated with those claims?
Damore Has Already Gone to the NLRB.
Immediately after his termination, Damore filed a Complaint with the National Labor Relations Board (NLRB) alleging that he was terminated in retaliation for engaging in concerted activity protected by the National Labor Relations Act (NLRA). Even though Damore was not a unionized employee, the NLRA still protects his right, and the right of other non-supervisory employees, to discuss with other employees issues related to their terms and conditions of employment.
It is clear that at least parts of Damore’s memorandum constitute protected concerted activity. In a number of places he expresses concerns over the terms and conditions of employment that impact him and other Google employees, and he openly shared the memorandum with other employees in an attempt to seek feedback and begin a discussion. With that hurdle met, Damore must prove that he was fired because of his protected concerted activity and not for some other lawful reason.
Damore’s likelihood of success will depend on a few different factors: (1) Google’s ability to demonstrate that he was terminated for the perceived derogatory comments he made about women and because those comments violated Google’s Code of Conduct; and (2) the makeup of the NLRB itself.
In order to succeed, Google will need to establish that it terminated Damore not because he discussed the terms and conditions of his employment in the memo, but because he made negative and sexist comments about women that were not linked to his comments about the terms and conditions of employment and were, therefore, a violation of the Company’s Code of Conduct.
In recent years, the Obama-era NLRB has mostly favored employees in similar situations, but there are some cases in which the employer was successful in separating the protected concerted conduct from a policy violation and the terminations were therefore upheld by the NLRB. Here are two important cases that might come into play here:
In Cooper Tire, during a lockout, Anthony Runion yelled from the picket line at a group of black replacement workers: “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” After the lockout ended, Runion was not recalled to work because his comments violated the Company’s anti-harassment policy. After losing at arbitration, Runion filed a Complaint with the NLRB alleging that he was fired for participating in a picket line, and, therefore, the Company did not have just cause to terminate him. The Board agreed with Runion and reinstated him, finding that, although Runion’s comments were inappropriate, they were linked to his picketing activity, and, therefore, it was unlawful to terminate him.
In Knauz Motors’ BMW, the NLRB reached a different conclusion. Robert Becker, a salesperson at the dealership, was terminated after making two facebook posts related to his employer. The first post contained pictures of a recent Ultimate Driving Event at which the dealership launched sales for its newest car while serving hot dogs, bags of chips, and discount cookies. Becker posted pictures of fellow employees eating hot dogs and holding mini bottles of water. Underneath, he posted comments mocking his employer for its decision to serve hot dogs, bags of chips, and discount cookies at an event to launch the sale of a luxury vehicle. The second set of posts contained pictures of an accident that occurred at Knauz’s Land Rover dealership adjacent to the BMW dealership. The accident occurred when a salesperson allowed a 13 year-old to sit in the driver’s seat after a test drive. The child accidentally pressed the gas pedal and drove the truck over his father’s foot and into a pond. Becker posted a series of photos from the accident with sarcastic comments, including “OOOPS!” The dealership learned of the Facebook posts through phone calls from other dealerships and then terminated Becker.
Becker filed a Charge with the NLRB alleging that he was terminated for discussing the terms and conditions of his employment with other employees through Facebook. The Board upheld the termination and concluded that the second post about the accident was not protected concerted activity and that the second post was the sole reason for the termination.
In that case, the NLRB separated the first Facebook post from the second. Although the first post may have been protected concerted activity – the Board never decided – the Board allowed the termination based on the second post that was not protected activity. If the Board applies a similar analysis here, it might determine that although some of Damore’s memorandum is protected concerted activity, his derogatory comments are not. On the other hand, it is possible that the NLRB, like it did with Runion, may find that Damore’s comments, although certainly offensive, were tied to his complaints about the terms and conditions of employment, and, therefore, it was unlawful to fire him.
What the NLRB ultimately decides will be significantly impacted by the makeup of the Board. Under the Obama administration, democrats held the majority of Board seats. During that time period, it made a number of controversial decisions that broadened employee rights under the NLRA. Soon, however, the Board will be controlled by Republicans. Traditionally, the NLRB under Republican presidents has read employee rights under the NLRA to be narrower and has issued more employer-friendly decisions.
Damore Could File a Retaliation Claim under Title VII
Another possible avenue that Damore can take is to file a Complaint alleging retaliation for reporting gender discrimination. To succeed on such a claim, Damore would have to establish that he would not have been fired if he had not complained in the memorandum that Google’s policies were discriminatory towards men.
Damore has a better chance of succeeding with his NLRB Charge than he does under Title VII. Damore’s memo is riddled with sexist and derogatory comments about women. If those comments went unaddressed, Google certainly would have received hostile work environment complaints from women based on the memo and any conduct of Damore that they perceived to be harassing or discriminatory thereafter. This bolsters Google’s argument that they had no choice but to terminate Damore and that his own complaints about discrimination against men had nothing to do with the termination decision, because failure to terminate him could create a hostile work environment for female employees.
Now if we were advising Google, we would have suggested that Google investigate Damore’s allegations of gender discrimination before making the decision to terminate him. It may not have changed the outcome, but Google would have done its duty under the law to promptly and thoroughly investigate allegations of discrimination and would also know whether there was any merit to Damore’s claims that needed to be addressed.
We May Never Find Out the True Outcome
It is likely that Google and Damore will reach some sort of settlement before either the NLRB or a jury makes a decision about his termination. As a result, we may never know who would have succeeded under the law. If the matters were decided before the NLRB and a jury, it is possible that Damore would win in one matter and lose in the other. Only time will tell.
Employers often weigh the risks associated with terminating an employee. Those considerations usually include an assessment of the employer’s ability to defend against potential discrimination and harassment claims. Employers, however, also need to consider whether an employee may have a viable claim that that he was fired for engaging in protected concerted activity under the NLRA. Failure to do so can have serious consequences for employers.