Free speech limit seen in Google case

Was memo writer’s fir­ing jus­ti­fied? Sur­pris­ingly, it’s not a 1st Amend­ment is­sue.

Los Angeles Times - - BUSINESS - By Tracey Lien

SAN FRAN­CISCO — In a coun­try known for its rev­er­ence of free speech, in a state strict with la­bor codes, in an in­dus­try steeped in lib­er­tar­ian and pro­gres­sive ideals, if an em­ployee has some­thing to say, he should just be able to say it, right?

Not quite, as one Google em­ployee learned the hard way when he was fired Mon­day af­ter writ­ing and in­ter­nally cir­cu­lat­ing a memo in which he crit­i­cized the com­pany’s di­ver­sity ef­forts as un­fair and dis­crim­i­na­tory.

When the memo be­came public, women and un­der­rep­re­sented groups in tech de­cried it and Google de­nounced it. But by Mon­day night, af­ter Google fired the en­gi­neer, claim­ing he’d vi­o­lated the com­pany’s code of con­duct, the con­ver­sa­tion shifted. Some in tech were in­cred­u­lous that some­one could lose his job for ex­press­ing dis­sent. Peo­ple took to Twit­ter: Whither free speech?

One thing many mis­un­der­stand about the 1st Amend­ment is that it only pro­tects the public’s right to free speech from gov­ern­ment cen­sor­ship — mean­ing it doesn’t ap­ply to the re­la­tion­ship be­tween pri­vate em­ploy­ers and em­ploy­ees.

“The 1st Amend­ment is ac­tu­ally ir­rel­e­vant be­cause the lan­guage says, ‘Congress shall make no law … abridg­ing the free­dom of speech,’ so it only re­stricts what Congress may do,” said Matt Oster, an at­tor­ney with Wolf, Rifkin, Shapiro, Schul­man & Rabkin. “An em­ployer is pretty free to re­strict what its em­ploy­ees may say, as long as it doesn’t run afoul of other rules.”

It’s a dif­fer­ent story for gov­ern­ment work­ers, who get 1st Amend­ment pro­tec-

tions in the work­place be­cause their em­ployer is, well, the gov­ern­ment. But for em­ploy­ees of non-gov­ern­ment or­ga­ni­za­tions, there is no blan­ket free speech pro­tec­tion.

Worker pro­tec­tions

Em­ploy­ees have pro­tec­tions un­der the Na­tional La­bor Re­la­tions Act and, in Cal­i­for­nia, the Fair Em­ploy­ment and Hous­ing Act, among other laws. These acts pro­tect cer­tain classes from dis­crim­i­na­tion based on cat­e­gories such as gen­der, race, sex­ual ori­en­ta­tion and na­tional ori­gin. Spe­cific to Cal­i­for­nia, po­lit­i­cal af­fil­i­a­tions are also a pro­tected class, which means an em­ployer can­not take dis­ci­plinary ac­tion against an em­ployee for his or her mem­ber­ship in a po­lit­i­cal or­ga­ni­za­tion, or for hold­ing cer­tain po­lit­i­cal views.

There are also other laws in Cal­i­for­nia that carry non-re­tal­i­a­tion pro­vi­sions, which means if some­one makes a com­plaint about work con­di­tions — whether it’s work­place dis­crim­i­na­tion or un­paid over­time — an em­ployer can­not fire him or her for ex­press­ing those opin­ions.

“The per­son com­plain­ing doesn’t even have to be right,” Oster said. “They only have to make their com­plaint in good faith.”

In the case of James Damore, the sacked Google em­ployee, he ac­cused Google in his 10-page memo of re­sort­ing to dis­crim­i­na­tory prac­tices in its quest to di­ver­sify its work­force.

He ar­gued, among other things, that cre­at­ing pro­grams and men­tor­ing op­por­tu­ni­ties for women or peo­ple of cer­tain eth­nic groups cre­ated a “high pri­or­ity queue” for “di­ver­sity can­di­dates,” and that the com­pany shows more scru­tiny to­ward “any set of peo­ple if it’s not ‘di­verse’ enough,” but doesn’t show “that same scru­tiny in the re­verse di­rec­tion.”

He also ac­cused the com­pany of alien­at­ing peo­ple with con­ser­va­tive views.

Whether an ar­bi­tra­tor or jury will de­ter­mine that Damore’s complaints qual­ify for pro­tec­tion un­der Cal­i­for­nia la­bor laws is yet to be seen.

“I have a right to ex­press my con­cerns about the terms and con­di­tions of my work­ing en­vi­ron­ment and to bring up po­ten­tially il­le­gal be­hav­ior, which is what my doc­u­ment does,” he said in an email in­ter­view with the New York Times.

Damore told the Associated Press on Tues­day that he was fired for “per­pet­u­at­ing gen­der stereo­types,” and that he con­sid­ers his ter­mi­na­tion il­le­gal be­cause he had al­ready filed a com­plaint with the Na­tional La­bor Re­la­tions Board. He also said he was ex­plor­ing his le­gal op­tions.

Google’s case

While Damore could ar­gue that his ter­mi­na­tion was a vi­o­la­tion of the Na­tional La­bor Code or the Fair Em­ploy­ment and Hous­ing Act, Google could counter that he wasn’t fired for views pro­tected un­der the la­bor code, le­gal ex­perts said.

Em­ploy­ment at­tor­neys were quick to point out that in his own memo to em­ploy­ees, Google Chief Ex­ec­u­tive Sun­dar Pichai ac­knowl­edged that parts of Damore’s memo were “fair to de­bate, re­gard­less of whether a vast ma­jor­ity of Googlers dis­agree with it,” po­ten­tially set­ting the com­pany up to de­fend it­self against ac­cu­sa­tions of quelling un­pop­u­lar opin­ions.

In­stead, Pichai fo­cused on the “por­tions of the memo” that vi­o­lated the com­pany’s code of con­duct, such as when Damore stereo­typed women by stat­ing that women on av­er­age were more neu­rotic and prone to anx­i­ety, mak­ing them less com­pat­i­ble with tech’s work en­vi­ron­ment.

Google’s op­tions

Once Damore’s memo went public, Google had two op­tions, said Adam Galin­sky, a pro­fes­sor of man­age­ment at the Columbia Busi­ness School: stand by the em­ployee, or fire him.

“The most im­por­tant thing was some de­ci­sive, strongly worded ac­tion had to be taken by Google be­cause of the firestorm this cre­ated,” Galin­sky said.

De­spite the po­ten­tial for Damore to take le­gal ac­tion, Galin­sky be­lieves the com­pany did the right thing, par­tic­u­larly in light of the cul­tural shift tak­ing place in Sil­i­con Val­ley, where dis­crim­i­na­tory be­hav­ior is de­creas­ingly tol­er­ated.

But in ad­di­tion to tak­ing a moral stance, em­ploy­ment at­tor­neys be­lieve Google took a wise le­gal stance too.

“The com­pany has a re­spon­si­bil­ity to take ap­pro­pri­ate, cor­rec­tive ac­tion, and an em­ployer has an obli­ga­tion to pre­vent any con­duct that cre­ates a hos­tile work en­vi­ron­ment,” said Ge­nie Har­ri­son, an em­ploy­ment law ex­pert at Ge­nie Har­ri­son Law Firm.

“It’s a fair busi­ness de­ci­sion, be­cause imag­ine if they re­tain him, they send him to some kind of sen­si­tiv­ity train­ing, they bring him back to the work­place, and two months from now the guy is work­ing with fe­male em­ploy­ees and he says some­thing sex­ist,” Har­ri­son said.

“Those women are go­ing to have ro­bust po­ten­tial cases against Google, be­cause they will ar­gue that Google knew that he was sex­ist and didn’t take ap­pro­pri­ate ac­tion [to pre­vent him] from do­ing it again.”

Damore sup­port­ers took to Twit­ter to de­bate Google’s de­ci­sion, de­scrib­ing it as a case of po­lit­i­cal cor­rect­ness gone wild, and paint­ing Google as an au­thor­i­tar­ian or­ga­ni­za­tion that didn’t al­low for dis­sent­ing or un­pop­u­lar views. Some techies also thought the memo, in which Damore wrote that bi­o­log­i­cal dif­fer­ences be­tween men and women are the rea­son some women might not ex­cel in the tech pro­fes­sion, made fair points.

“You don’t fire a bi­ol­o­gist for not­ing that the SRY pro­tein could re­sult in so­cial/ cog­ni­tive dif­fer­ences as if he were pro­mot­ing ha­rass­ment,” Eric We­in­stein, the manag­ing di­rec­tor of Thiel Cap­i­tal, said on Twit­ter.

‘A gray area’

Damore pub­lished the memo on Google’s in­ter­nal plat­form. If he, or any em­ployee, for that mat­ter, had pub­lished his memo ex­ter­nally, in his own time, on his own web­site, without us­ing any of Google’s re­sources, things might have played out dif­fer­ently, em­ploy­ment at­tor­neys said.

That’s be­cause Cal­i­for­nia has a statute in the la­bor code that says an em­ployer can­not dis­ci­pline an em­ployee for con­duct that is not il­le­gal, and takes place out­side of work­ing hours, not on work premises, and not us­ing work equip­ment.

Would there still be a ker­fuf­fle about the memo? Prob­a­bly. But Google would prob­a­bly have a harder time fir­ing him.

If Damore moves ahead with a le­gal case, his fate, as well as those of his 3,411 words, will ul­ti­mately be de­cided by an ar­bi­tra­tor or a jury.

“It’s not like there’s a black-and-white test you can use to say if this sort of thing is pro­tected or not,” said Eve Wag­ner, a part­ner at the law firm Sauer & Wag­ner. “This def­i­nitely falls in a gray area. It’ll be an in­ter­est­ing case to fol­low.”

Fa­cundo Ar­riz­a­bal­aga Euro­pean Pressphoto Agency

AF­TER GOOGLE FIRED en­gi­neer James Damore, con­tend­ing he’d vi­o­lated the com­pany’s code of con­duct, the con­ver­sa­tion shifted from di­ver­sity to ques­tions about free speech. Above, a Google of­fice in Lon­don.

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