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Does Former Google Engineer Have a Case?

Former Google engineer James Damore has indeed filed a complaint against parent company Alphabet with the National Labor Relations Board.  Damore was fired earlier last week after his 10-page document went viral. In it he described his thoughts on Google’s efforts to hire more women, and argues that biology is at least in part to blame for the lack of women in tech and leadership roles, rather than sexism. The memo also makes claims about the ways liberals and conservatives think, implying that conservatives viewpoints were being shunned among the left-leaning populous of the company.  His firing set off a firestorm as well, with some people arguing that Damore’s freedom of speech was being violated. According to a copy of the complaint, Damore is alleging that his employer has violated “section 7” of the National Labor Relations Act, which ensures “protected concerted activities.”

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.  When it comes to employee memos and social media posts, content generally will be protected if it relates to or grows out of group action, such as when an individual employee solicits other employees to take action to fix work-related problems or seek improvements in the workplace.  There’s no evidence that Damore, who worked on Google’s search product, was trying to organize a union. 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.  However, mere griping by an individual employee will not be protected as a protected concerted activity.  Additionally, even communications that would be deemed concerted activities can lose NLRA protection if they express egregiously offensive, abusive, or knowingly and malicious false statements.

Google Engineer’s Possible Claim Under Title VII

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.

Google Engineer and Free Speech in the Workplace

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.

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.