Google firing over memo called just.
A memo says James Damore’s comments could cause ‘dissention and disruption’
Fired Google software engineer James Damore’s controversial memo on gender issues in the workplace constituted sexual harassment and the Mountain View tech giant was right to sack him, a federal labor board memo said.
Damore’s discrimination lawsuit against Google will not be affected by the claims in the National Labor Relations Board memo, which mischaracterizes allegations against Damore as sexual harassment, said his lawyer Harmeet Dhillon.
But Google is likely to use the memo to defend itself against the lawsuit filed by Damore, said a San Francisco employment lawyer.
The Jan. 16 federal labor board memo, from a labor board lawyer to the regulator’s Oakland-based regional director, said Damore’s “statements about immutable traits linked to sex — such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution — were discriminatory and constituted sexual harassment, notwithstanding effort to cloak comments with ‘scientific’ references and analysis, and notwithstanding ‘not all women’ disclaimers.”
“Those statements were likely to cause serious dissension and disruption in the workplace. Indeed, the memorandum did cause extreme discord,” the labor board memo said. “Numerous employees complained to the Employer that the memoran-
dum was discriminatory against women, deeply offensive, and made them feel unsafe at work.”
Damore had last year circulated a memo internally at Google in which he proposed that biology, in part, may explain the scarcity of women in tech. He claimed women were more neurotic than men, and he referred, generally, to a biological basis for IQ differences between people.
Of his subsequent firing, the labor board memo said Google acted appropriately in terminating him only for statements not protected by law — and that Google did not fire him over his comments “expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs, which were likely protected.”
Shortly after Google ousted him, Damore filed a
complaint with the federal labor board. He withdrew the complaint in September, and in January launched a lawsuit, seeking class-action status against Google, accusing it of discriminating against men, conservatives and white people.
Damore had withdrawn his labor board complaint because the regulator didn’t appear to be proceeding on it in a timely manner, his lawyer said Tuesday.
The lawsuit enables Damore to make a broader set of claims and seek monetary damages beyond back pay, Dhillon said, adding that more than 100 people had contacted her office wanting to join the suit.
“There’s just a lot more things you can do in court for many more people than a narrow claim over whether you were discriminated against for (legally) protected … activity,” Dhillon said.
The conclusions about Damore’s memo in the labor board’s memo struck Dhillon as “odd” because the regulator held no hearings
in the case and no evidence was given under penalty of perjury, she said.
Use of the term “sexual harassment” in the memo by the labor board lawyer, Dhillon said, did not even fit with the activities Damore has been accused of — and denies.
“Gender discrimination is really what the lawyer was trying to say,” Dhillon said. “That’s what happens when you run far afield from your area of expertise.”
San Francisco employment lawyer Jason Geller — whose firm represents employers in labor cases — said sexual harassment usually involves a pattern of conduct directed at individuals, or revolves around one or a handful of egregious acts.
“I would think that one memo would not be sexual harassment in a legal sense,” Geller said.
Still, Google is likely to use the labor board’s memo in fighting the lawsuit Damore filed in California Superior Court in Santa Clara County, Geller said.
“This kind of thing happens in employment litigation often when lawyers might introduce court orders or judicial decisions from other jurisdictions or scholarly articles or the like to persuade the court to its point of view,” Geller said. “You could certainly anticipate Google bringing it before the court’s attention.”
In taking his complaint to court, Damore can make free-speech arguments not possible in a labor board complaint, said William Gould, emeritus professor of law at Stanford University.
Google, however, will likely point to the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos that, although it covered public employees, highlighted the disruptive potential of unrestricted speech in the workplace, Gould said.
The labor board did not immediately respond to a request for comment.
Google declined to comment.