A federal body overseeing labor disputes advised the dismissal of Jeremy Damore’s claim that Google fired him unjustly for his controversial memo regarding inclusion and diversity programs at the company. Citing similar precedents, the National Labor Relations Board counsel deemed parts of the memo “so harmful, discriminatory, and disruptive” as to shed their status as protected speech in the workplace.
The NLRB memo, issued on January 16 and published publicly yesterday, does not constitute an official ruling or legal action. It is, however, the official advice of a federal lawyer who specializes in this field, and its conclusion, that the complaint be dismissed, would likely have been followed by the regional board being advised. Instead, Damore withdrew the complaint.
In her handling of the complaint, Jayme Sophir (associate general counsel of the NLRB’s Division of Advice) examined the public documents relating to the case — viz. the memo itself and the post by CEO Sundar Pichai, among other things — and internal ones, such as posts to employee forums and emails sent to and from Damore and others.
Sophir found that Damore’s memo contained a great deal of protected speech, as he clearly seems deeply concerned with company policies that he thinks discriminatory. His opinions on those programs and advice for Google regarding them are certainly protected, she found, and a document prepared by an HR manager ahead of speaking to Damore (not an email to him as I previously had put here) emphasizes this (brackets NLRB’s):
I want to make clear that our decision is based solely on the part of your post that generalizes and advances stereotypes about women versus men. It is not based in any way on the portions of your post that discuss [the Employer’s] programs or trainings, or how [the Employer] can improve its inclusion of differing political views. Those are important points.
But she also cited several precedents where employees, in the course of “concerted activities regarding working conditions,” exceeded the bounds of protected speech, such as accusations that a foreman was a Klansman, or making degrading allusions to a co-worker’s sexual orientation. These forms of speech could be banned and the speakers in question disciplined or fired “as a reasonable precaution against discord and bitterness.”
Portions of Damore’s memo fell under the same category as these examples, Sophir found (brackets mine to interpret redacted portions).
The Charging Party’s use of stereotypes based on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases. [Damore’s] statements about immutable traits linked to sex—such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding [his] effort to cloak [his] comments with “scientific” references and analysis, and notwithstanding [his] “not all women” disclaimers.
Damore’s defenders have steadfastly maintained that the memo does not say outright that women are biologically less suited to engineering than men, and that critics are being uncharitable in their reading of his arguments. While that may stand up in comment section arguments, it’s harder to assert that Sophir, an expert in the field who evaluates such situations for her profession, failed to closely read the memo.
The charge that Google violated the law in firing Damore was advised to be dismissed, should he not withdraw the complaint — which he did. The case was closed on January 19, three days after the NLRB’s memo was issued.
It’s not the end of the road for Damore, though this decisive refutation of his complaint is a significant and public setback. He has also filed a class action lawsuit against the company and is agitating in other ways against the political correctness he feels led to his dismissal.