- An expert in California labour law tells us that Damore has a better chance of winning his case than most people think.
- That’s because Damore’s case is NOT about free speech, discrimination, or his rights as an “at-will” worker.
- Damore filed under a section of law that deals with protecting statements made by workers’ rights activists who have questions about wages and conditions.
- Google may have difficulty establishing that he broke the company’s internal code of conduct because he used bulletin boards that the company provided to allow employees to discuss these issues, and because his manifesto repeatedly states he is in favour of diversity and intended to “increase women’s representation in tech.”
James Damore, the man fired by Google after he published a manifesto that suggested women may have a disadvantage in tech because of their biology, may well prevail in the legal case he has filed against his former employer.
That’s because he filed his complaint against Alphabet (Google’s corporate parent) under a specific provision of the National Labour Relations Act that protects workers’ rights activists. Under that provision, Damore’s complaint will not be about whether he was discriminated against as a white person, a male, or a conservative, or whether the company had a right to let him go as an “at-will” worker.
Rather, the provision governs what workers are allowed to talk about in the workplace in regards to pay, conditions, promotions, and other workplace practices. The law was originally crafted to protect the right of union organisers to discuss pay rates with their colleagues, and more latterly to protect anyone asking questions at work about who gets paid what, and why.
On that basis, he has a fighting chance, according to Valerie L. Sharpe, a labour lawyer based in the San Francisco area. She told Business Insider that Damore’s chances of success are “a little bit above decent.” HR lawyers at other tech companies in the Bay Area are following the case closely for that reason, she says.
Damore’s complaint specifically cites Section 8(a)(1) of the National Labour Relations Act, citing “Coercive Statements (Threats, Promises of Benefits, etc.)”
Sec. 8. [§ 158.] (a) [Unfair labour practices by employer] It shall be an unfair labour practice for an employer–
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title];
Sec. 7. [§ 157.] Employees shall have the right to self-organisation, to form, join, or assist labour organisations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labour organisation as a condition of employment as authorised in section 8(a)(3) [section 158(a)(3) of this title].
“The crux of his claim is whether Google penalised him for raising concerns about working conditions (i.e., unfair treatment of white men?),” Sharpe says. “Whether the manifesto really constitutes a ‘concern about working conditions’ and whether he was acting for the good of others will be the dispositive issues. I am not aware of any cases that are exactly on point, but there are certainly cases that litigate this issue and cases where employees are returned to work.”
Damore doesn’t have to prove that the allegations made in his manifesto are true
“Damore’s possible claims really have nothing to do with whether white males are discriminated against in wages and promotion,” Sharpe says. “It is about whether he was fired because he complained that Google’s diversity efforts were unfair to men. He doesn’t have to prove the allegation, just that he made the claim for the purpose of advancing working conditions of himself and others.”
Google’s other problem in defending this case will be to establish that Damore broke company policy by publishing the manifesto. Google’s employee code of conduct prohibits employees from discriminating against each other on the basis of sex or race. “Googlers are expected to do their utmost to create a workplace culture that is free of harassment, intimidation, bias, and unlawful discrimination,” it says. The company might, presumably, argue that Damore’s manifesto was an example of using a company message board to post a discriminatory statement that violated the policy. The manifesto argued that “biological causes … may explain why we don’t see equal representation of women in tech and leadership.” No doubt many female Google employees complained internally that it was being circulated on Google’s employee message boards.
But the manifesto was specifically worded. It repeatedly states that Damore is in favour of diversity, but merely has a different view on how to achieve it, and it only questions whether Google’s current efforts to encourage women and minorities are fair. The intent of the manifesto was to “suggest ways to address them to increase women’s representation in tech without resorting to discrimination,” it says.
“I have conducted probably 100 workplace investigations to assess whether employee complaints about harassment and discrimination violate employer codes of conduct and I am not sure I would find this to be a violation of a Code that merely prohibited ‘unlawful’ harassment and discrimination,” Sharpe says.
Lastly, Google may have trouble establishing that using its message board was a violation of policy, given that the message boards are provided by the company precisely to allow workers to discuss workplace issues. “Because start-ups like Google have lots of message boards and employer sponsored forums for employees to discuss work issues (i.e. Employee Resource Groups), Google will have challenges establishing a policy violation,” Sharpe says.
Of course, the irony here is that if Damore wins it will be regarded as a big victory for conservatives who work in tech, even though the win would strengthen the kind of workers’ rights that are traditionally the focus of the left.
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