Last week, James Damore was fired by Google after he published a manifesto of sorts that alleged women were at a disadvantage in the tech industry becasue of their biology. The document, which set off a fierce debate, was deemed sexist, and Damore was shown the door. Now some experts say he might prevail in this case.
After he was fired, Damore filed a complaint against Alphabet (Google’s parent coorporation) under the National Labor Relations Act. Most NLRA claims deal with discrimination based on race, gender, and political ideology.
Yet there is one provision that, as Business Insider writes, allows workers “to talk […] in the workplace about pay, conditions, promotions, and other practices. The law was crafted to protect the right of union organizers to discuss pay rates with their colleagues, and more recently to protect anyone asking questions at work about who gets paid what, and why.”
Valerie Sharpe, San Francisco labor lawyer, told Business Insider that Damore’s chances are “a little bit above decent.”
“Damore’s complaint cites section 8(a)(1) of the National Labor Relations Act,” BI writes, “which deals with ‘coercive statements (threats, promises of benefits, etc.).’
Section 8(a)(1) reads:
“It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”
Section 7 reads:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, 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 labor organization as a condition of employment as authorized in section 8(a)(3).”
Need a lawyer to parse that out for you? So did Business Insider.
“The crux of his claim is whether Google penalized him for raising concerns about working conditions (i.e., unfair treatment of white men?)” Sharpe told the publication. “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’s possible claims really have nothing to do with whether white males are discriminated against in wages and promotion,” Sharpe continued. “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.”
Did Damore break Google’s company policy by publishing his document? They have policies in place against discrimination.
“Googlers are expected to do their utmost to create a workplace culture that is free of harassment, intimidation, bias, and unlawful discrimination,” the policy says.
When Damore wrote that “biological causes … may explain why we don’t see equal representation of women in tech and leadership,” he may have crossed that line.
Yet Damore doesn’t stand in opposition to diversity. In fact, his manifesto was about finding alternative ways to address diversity. Yet his attempt to “suggest ways to address” what he perceives as biological differences and “to increase women’s representation in tech without resorting to discrimination,” he stepped over the line.
“I have conducted probably 100 workplace investigations to assess whether employee complaints about harassment and discrimination violate employer codes of conduct,” Sharpe told BI. “I am not sure I would find this to be a violation of a code that merely prohibited ‘unlawful’ harassment and discrimination.”
Damore is free to think how he wants, obviously, but he posted his ideas on a message board at Google. So that’s an issue, too. Yet that is precisely why Google has the message boards.
“Because startups 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 concluded.
This case will be closely watched, for sure. We’ll bring any updates. Until then, you can hear Damore in his own words, here.