A Google engineer was not wrongfully fired for writing a memo criticizing the company’s diversity policies and explaining biological differences between male and female employees, ruled a National Labor Relations Board lawyer this week.
The NLRB lawyer, Jayme Sophir, wrote that the tech giant lawfully fired James Damore for his “discriminatory statements.” She found that Damore’s now-legendary memo contained statements “so harmful, discriminatory and disruptive” that they are not protected by federal labor law.
Statements in James Damore’s 3,000-word memo “regarding biological differences between the sexes were so harmful, discriminatory, and disruptive” that they fell outside protections for collective action in the workplace, an associate general counsel for the National Labor Relations Board wrote in a six-page memo disclosed Thursday.
When he was dismissed in August, Damore accused Google of violating the employee right to engage in “concerted activity” to address workplace issues, a category which the labor board has found can include forms of activism ranging from lawsuits to strikes to social media posts.
“Much of” Damore’s memo was probably protected under the law, the labor board’s attorney, Jayme Sophir, said in the Jan. 16 memo. But Sophir went on to find that Google discharged Damore only for his “discriminatory statements,” which aren’t shielded by labor law.
Because companies have a duty to comply with equal employment laws and an interest in promoting diversity, “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,’ rather than waiting until an actionable hostile workplace has been created before taking action,” Sophir wrote.
The company “carefully tailored” its messages in firing Damore and in addressing employees afterward “to affirm their right to engage in protected speech while prohibiting discrimination or harassment.” Google also disciplined one of Damore’s co-workers for sending him a threatening email in response to the memo, Sophir said.
Sophir is a Deputy Associate General Counsel at the NLRB. She has been an NLRB lawyer since 1988 and a practicing lawyer since 1985.