Le­gal ex­perts: Fired en­gi­neer faces head­winds mak­ing case he is vic­tim

The Denver Post - - BUSINESS - By Josh Eidelson and Jor­dyn Hol­man

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 may not get far in court.

James Damore on Mon­day said he was “ex­plor­ing all pos­si­ble le­gal reme­dies” af­ter the in­ter­net gi­ant ter­mi­nated him over his 3,000-word man­i­festo blast­ing Google’s “left bias” for cre­at­ing a “po­lit­i­cally cor­rect mono­cul­ture” that ig­nores dif­fer­ences be­tween the sexes.

Damore told The Associated Press he con­sid­ers his fir­ing il­le­gal be­cause he had al­ready filed a com­plaint with the Na­tional La­bor Re­la­tions Board.

The board de­clined to com­ment.

But 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 non-union pri­vate sec­tor em­ploy­ees can be fired for al­most any rea­son — or no rea­son at all.

“Any claim that (Damore) brings will have only a neg­li­gi­ble chance at suc­cess,” said law pro­fes­sor Paul Se­cunda, who di­rects the la­bor and em­ploy­ment law pro­gram at Mar­quette Univer­sity.

What’s more, fir­ing Damore may have kept Google on the right side of the law, if the com­pany or its em­ploy­ees felt that the memo had cre­ated a work en­vi­ron­ment that was hos­tile to women.

Adam Galin­sky, chair of man­age­ment at Columbia Busi­ness School, said com­pa­nies may have a le­git­i­mate rea­son for fir­ing some­one for ex­press­ing views that dis­rupt the pro­fes­sional en­vi­ron­ment.

“I think that the fir­ing was the ap­pro­pri­ate re­sponse here,” Galin­sky said. “I think if they didn’t fire the em­ployee, it would have cre­ated a lot of in­ter­nal un­rest among the women who work at Google.”

In his de­fense, Damore could claim un­der the Civil Rights Act that he was fired for be­ing male or for speak­ing out against an­ti­male dis­crim­i­na­tion, but 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.”

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 whether the com­pany was tak­ing ac­tion against the em­ployee.

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.

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