Ex-Employee Faces Legal Obstacles -- WSJ

By Jacob Gershman and Sara Randazzo Features Dow Jones Newswires

This article is being republished as part of our daily reproduction of WSJ.com articles that also appeared in the U.S. print edition of The Wall Street Journal (August 9, 2017).

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The Google engineer fired for writing a memo asserting biological causes behind the tech gender gap is likely to face significant hurdles in any legal action against his ex-employer, experts say.

Software engineer James Damore has said he is exploring "all possible legal remedies" after Google fired him late Monday over a leaked memo he wrote suggesting that women are less suited for tech careers than men and that Google's diversity efforts are too concerned with sexism. He already has filed a formal complaint with the federal agency that investigates labor practices.

In responding to any legal claim, Alphabet Inc.'s Google could argue that it took action to prevent a hostile work environment for women and to avoid workplace or customer disruptions, employment lawyers said. Those interests could very well outweigh Mr. Damore's rights, according to the experts.

Already, Google appears to be framing such a potential legal defense in response to the firing.

In a staff email Monday, Google Chief Executive Sundar Pichai said portions of Mr. Damore's memo violate the company's code of conduct and "cross the line by advancing harmful gender stereotypes in our workplace."

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Private employees have fewer rights to speak their mind at work than government-employed workers, who are protected by the First Amendment.

"You have a right to work in a workplace free of discrimination," said plaintiffs' employment lawyer David Sanford in Washington, D.C. "You don't have the right to say whatever pops into your head."

Mr. Damore has said that, prior to losing his job, he filed a formal complaint with the National Labor Relations Board, which enforces federal labor law. He said that the complaint was prompted by Google executives' criticism of the memo and that he has a right to express "concerns about the terms and conditions of [his] working environment and to bring up potentially illegal behavior."

The National Labor Relations Act deals predominantly with collective bargaining or union organizing but also protects the rights of nonunion employees to act together to improve their working conditions.

Thomas Jefferson School of Law Prof. Susan Bisom-Rapp, who researches employment discrimination law, said while she disagreed with Mr. Damore's views, she could envision potential legal arguments he could make to invoke the NLRA.

That Mr. Damore's letter doesn't appear to be drafted in concert with other Google employees doesn't in itself mean the law cannot be invoked. Protections can be triggered by a single employee trying to rally colleagues around a wider workplace issue.

Mr. Damore could try to argue that he's "protected in expressing himself in an effort to engage in dialogue with co-workers about Google's diversity efforts," said Prof. Bisom-Rapp.

However, "an employee gripe or complaint standing alone, without that call to fellow employees to gather together, is not enough," said Julie Totten, an employment defense lawyer with Orrick, Herrington & Sutcliffe LLP in Sacramento.

Labor law also forbids employers from firing a worker for alleging an unfair labor practice, making the timing of Mr. Damore's formal complaint potentially relevant in a legal dispute, said Prof. Bisom-Rapp.

Legal experts said federal antidiscrimination law could offer Mr. Damore another possible, albeit narrow, legal avenue. His memo suggested Google is engaging in reverse discrimination, citing "special treatment for 'diversity' candidates." Title VII of the 1964 Civil Rights Act bans employers from retaliating against workers for complaining about unlawful workplace discrimination.

"You would have to show what Google is doing is illegal. That would be difficult," said Prof. Matt Bodie, an employment law scholar at Saint Louis University Law School and a former NLRB field attorney.

The NLRB generally doesn't impose remedies beyond reinstatement of employment and back pay, Mr. Bodie said.

California, like a number of states, also gives workers rights to engage in political activity.

California courts have defined political activity broadly to cover not just speech about candidates, parties or laws, but the active promotion of a cause. It is unsettled, though, whether it protects on-the-job speech or just speech expressed outside of work.

Write to Jacob Gershman at jacob.gershman@wsj.com and Sara Randazzo at sara.randazzo@wsj.com

(END) Dow Jones Newswires

August 09, 2017 02:47 ET (06:47 GMT)