Fired Google engineer may have limited recourse

Experts believe his comments aren’t protected

The engineer fired by Google after he blasted the company’s diversity policies can try to argue he was unfairly dismissed, but legal experts say he has an uphill battle in court.

James Damore said Monday he was “exploring all possible legal remedies” after the internet giant terminated him over his 3,000-word manifesto that criticized Google for creating a “politically correct monoculture” that ignores differences between the sexes. Damore also submitted a complaint Monday with the National Labor Relations Board.

Unlike government employees, who have some free speech protections, private employees in the U. S. have little legal recourse if companies choose to retaliate for things they say at work or at home. In fact, most nonunion private sector employees can be fired for almost any reason — or no reason at all — as long as their civil rights aren’t violated.

Damore could argue to the labour board that by firing him for his memo, Google violated the federal law that protects collective action by employees, said Wilma Liebman, who chaired the National Labor Relations Board under president Barack Obama. To prevail, he’d have to show that his letter was related to workplace conditions, that it was designed to instigate collective action among his co- workers, and that it wasn’t so defamatory or offensive as to forfeit legal protection. “I think it’s an open question,” Liebman said.

On Monday, Google CEO Sundar Pichai sent a note to employees that said portions of Damore’s memo “violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.” He didn’t say if the company was taking action against the employee. A Google representative, asked about the dismissal, referred to Pichai’s memo.

In his missive, Damore argued that biological differences play a role in the shortage of women in tech and leadership positions. It circulated widely inside the company and became public over the weekend, causing a furor that amplified the pressure on Google executives to take a more definitive stand.

Regarding his administrative complaint to the labour board, Damore told the New York Times Google’s leaders were trying to silence him.

While the National Labor Relations Act protects employees’ collective action in the workplace, law professor Paul Secunda voiced skepticism that Damore sought to speak for anyone but himself.

“This seems like a personal grievance,” said Secunda, who directs the labour and employment law program at Marquette University.

But if Damore’s remarks were meant as an appeal to his co- workers, “then he is being punished in retaliation for engaging in concerted activity,” New York University law professor Samuel Estreicher said in a phone interview.

Legal experts said Damore has other potential legal avenues, but none are likely to succeed. He could claim under the Civil Rights Act that he was fired for being male or for speaking out against anti-male discrimination. Google could counter that it actually fired him for the attitudes he expressed about women, which aren’t protected.

“He would have to show that if a woman had made similar comments about women’s superiority for jobs, that woman in a similar situation would not have been terminated,” said Shannon Farmer, a partner at Ballard Spahr who represents employers. “That’s probably a hard thing to prove.”