In a recently released and lightly redacted memo, a staff attorney for the U.S. National Labor Relations Board concluded that Google’s firing of James Damore was legal.

Last year, Damore, a Harvard graduate and a little-known engineer at Google, ignited a firestorm when he published a memo in which he criticized Google’s diversity policies and opined on why there are so few women in the upper echelons of the tech industry.  Specifically, Damore contended that biological differences explain the scarcity of women in tech jobs, as (he argued) men are more suited to high stress jobs, and women are prone to anxiety and stress at work.

Damore’s controversial memo sparked national media attention and drew public criticism.  Google’s response to Damore’s memo was to fire him.  Google’s CEO sent an email to all Google employees acknowledging “the right of Googlers to express themselves,” but unequivocally stating that it is “not ok” to suggest that a group of colleagues have traits that make them less biologically suited to perform engineering technology work.

Before he was fired, Damore filed a complaint with the National Labor Relations Board on the grounds that Google had violated his right to engage in the protected concerted activity of challenging Google’s diversity policies with his memo.  Specifically, Damore charged that Google was “misrepresenting and shaming me in order to silence my complaints.”  (For readers unfamiliar with the statutory scheme:  the National Labor Relations Act guarantees to employees the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection ….”  These are known as “protected concerted activities” and they include communicating with coworkers about working conditions.)

On February 18, 2010, the NLRB made public an “Advance Memorandum” in which NLRB staff attorney Jayme Sophir recommended that Damore’s complaint be dismissed.  While the NLRB concluded that some parts of Damore’s memo were legally protected, “the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.”

The NLRB recognized that “[e]mployers have a strong interest in promoting diversity and encouraging employees across diverse demographic groups to thrive in their workplaces,” and further recognized that “[e]mployers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace.’”

Damore had withdrawn his complaint before the public release of the NLRB’s memo.  According to Damore’s lawyer, he is now focusing his efforts on bringing a class action lawsuit against Google, charging that Google unlawfully discriminates against conservative white men.

The primary takeaway from the NLRB’s memo is the tension and difficulty in determining what is protected employee speech and what types of speech are left unprotected because such speech is deemed to be harmful, discriminatory and/or disruptive.  In this case, the NLRB appears to have been swayed by the fact that Google had reassured its employees that Google supported their right to express dissenting viewpoints and critique Google’s programs, while also recognizing that discriminatory speech advancing harmful stereotypes would not be tolerated.  This case demonstrates that the demarcation between discriminatory or disruptive speech and protected employee speech is not always clear.  Therefore, employers should be sure to consult counsel before taking any adverse employment action against an employee for publishing controversial or critical statements regarding company policy.

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