An uphill fight.

By Jeff John Roberts
August 8, 2017
August 08, 2017

The tech world is an uproar over “Google’s Ideological Echo Chamber,” a memo in which a former Google engineer, James Damore, questioned the company’s attitudes towards women and diversity. Google fired Damore on Monday after the content of his memo became public and triggered a media firestorm over sexism and gender stereotypes in the workplace.

Now, Damore has told the New York Times he intends to sue Google for illegal dismissal, and that he has already filed a complaint with the National Labor Relations Board. But any case would be complicated, in part due to Damore’s identity as a white man and the nature of his complaints—he says he faced retaliation for espousing conservative views.

Does he have a case? The short answer is maybe. Here’s an overview, based on interviews with legal scholars, of three laws Damore could use to bring a lawsuit—and how he might fare.

Violation of Federal Labor Law

Under Section 7 of the National Labor Relations Act, employers are barred from prohibiting employees from organizing a union—nor can they interfere with “concerted activities” aimed at improving the workplace.

There’s no evidence that Damore, who worked on Google’s search product, was trying to organize a union. But he could argue that circulating his memo, which called for the inclusion of more diverse ideological viewpoints at Google, amounted to “concerted activities” protected under the law. He could likewise claim Google’s decision to fire him after he filed a NLRB complaint amounts to illegal retaliation (Update: the timing of the filing is disputed).

Violation of Federal Civil Rights Law

Title VII of the 1964 Civil Rights Act protects employees from discrimination based on race, color, gender, and religion. It has typically been invoked by groups, including women and African-Americans, who have faced systemic inequality in the workplace.

It’s less common for white employees to raise Title VII, and the claims may fail if the alleged discrimination is part of a legitimate affirmative action plan. But that doesn’t mean they are never successful: Employers can’t fire someone for being white or a man anymore than they can for being female or a person of color.

Damore, however, would have to show his firing was motivated by racial or gender considerations. In an email to employees about the episode, Google’s CEO Sundar Pichai did not appear to focus on gender, but instead on the disruptive effect Damore’s message had on many of his coworkers.

Violation of California Law Against Restricting Political Activity

Speech by employees at private companies is not protected by the First Amendment. It’s also widely understood that workers don’t have full free speech rights on the job (I’m pretty sure Fortune could fire me for repeatedly telling my readers to jump in the lake).

Nonetheless, many states do have laws that forbid employers from restricting some employee speech and political activity. And according to a 2012 paper by noted free speech scholar Eugene Volokh, California has such a law—and it’s among the nation’s strongest. The paper gives examples of how “political activities or affiliations” described in the law are broadly defined, and cites an influential court ruling from 1979:

“[P]olitical activities,” the California Supreme Court has stated, “cannot be narrowly confined to partisan activity,” but instead cover any activities involving the “espousal of a candidate or a cause,” including participating in broad social movements such as the gay rights movement. [my emphasis]

Damore’s memo speaks at length about how Google allegedly alienates conservatives, and calls on the company to reconsider how it defines diversity—positions, in other words, that could be protected as political participation that is protected under the California law. Indeed, this argument may prove to be the strongest of Damore’s if he chooses to sue Google.

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The Bottom Line: An Uphill but not Impossible Case

Roy Gutterman, a free speech authority at Syracuse University, noted that the traditional purpose of anti-discrimination laws have been to protect historically disadvantaged groups, not white men. This is one reason he describes Damore’s chance for success as an “uphill battle.”

Another law professor, who agreed to speak only on the condition of anonymity because he had worked for Silicon Valley companies, described the case as difficult but not impossible. He predicted a complaint brought by Damore would survive a motion to dismiss “barely.”

Finally, if Damore does decide to sue, it’s likely the case would settle instead of going to trial. That’s because the entire episode has proved a PR nightmare for Google—first as a result of the memo, which led many to accuse Google of institutional sexism, and then as a result of the company’s decision to fire Damore, which others decried as an assault on free speech. It’s a safe bet the company would like to sweep this under the rug as soon as possible.

A Google spokesperson said the company does not comment on specific employee cases. The spokesperson added, however, that if the stereotypes raised in Damore’s memo had turned on race rather than gender, few would be questioning the decision to dismiss him.

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