Google, Santa Clara

When Google Inc. fired a software engineer for writing and distributing a controversial memo on gender diversity at the company, Google stepped on the very thin line that separates protected workplace speech from speech that creates a hostile work environment. Did Google come down on the legal side of the line?

“Yes,” was the unequivocal answer of Barbara Hoey, chairwoman of Kelley Drye & Warren's labor and employment practice group in New York City. “In the context of this memo, you do exactly what Google did. It's a no-brainer.”

Jonathan Hyman's Ohio Employer Law blog also came down on the side of Google. Hyman is a partner at Meyers Roman in Cleveland.

Hyman wrote in a blog post that the employee “is free to speak his mind (within limits), and Google is free to terminate him (within those same limits), but I believe that when an employee takes a stand against its employer's commitment to diversity, that employee has crossed the line, and the employer has no choice but to terminate.”

But Aimee Delaney, a partner at Hinshaw & Culbertson was more circumspect. “You as a general counsel just want to make the assessment to understand the risk, based on your own corporate culture and needs,” Delaney said, declining to say if she would have fired him.

Delaney continued: “You can still decide that firing is the decision worth making. Just do it with your eyes open. And I imagine Google did.”

Firing any employee carries a risk of legal action, but terminating a worker who engaged in a highly public attack on his company's diversity policies carries added risk and engenders controversy, Delaney noted.

The brouhaha started in late July when the worker, James Damore, posted a 10-page memo to an internal Google site that questioned the company's gender diversity policies. The memo was widely posted on social media and has gone viral.

The company policy discussion in the memo, most lawyers agree, could arguably be considered “protected concerted activity,” which is sanctioned for employees under the National Labor Relations Act. But the memo went on to discuss why Damore believes women, on average, may not be biologically suited for roles in technology or leadership.

Damore cited as female traits “neuroticism,” a lower tolerance for stress and lack of assertiveness.

The memo has created a firestorm. First, Google, which has been subject to a U.S. Department of Labor inquiry that includes a look into possible compensation disparities disadvantaging women, fired Damore on Monday. And on Tuesday Google CEO Sundar Pichai sent out a companywide note explaining the dismissal.

“Much of what is in that memo is fair to debate,” Pichai's note said. “However, portions of the memo violate our code of conduct and cross the line by advancing harmful gender stereotypes in our workplace.”

The note added the code of conduct expects “each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.”

Damore could not be reached for comment Wednesday, but told the New York Times earlier that he probably would pursue legal action against Google.

The Times quoted an email from Damore that read: “As far as I know, I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does.”

Damore also has reportedly filed a complaint with the National Labor Relations Board against his former employer.

Delaney of Hinshaw & Culbertson said part of a company's risk assessment in deciding how to proceed in this situation, would be to determine if the employee was engaged in speech and concerted activities that are protected under federal fair labor laws. But if the speech violates the company's code of conduct, then the company must take some action.

This legal scenario is not unusual, she said, regardless of the size of the company. “This raises some unique issues, but over the last decade employers very frequently are dealing with employees posting something out in the universe of the internet that bleeds into the workplace, and they ask, 'Now what do we do?'” she said.

Hoey said federal law allows an employee to make legitimate work complaints in a reasonable manner. “I think he [Damore] failed on both counts,” she said. His work complaint morphed into “absolutely stereotyped statements about an entire class of people,” she explained, and the way he chose to communicate it was “inappropriate and disruptive of the workplace.”

Whatever the legal analysis, this much is sure: the public controversy has catapulted Damore into the public spotlight.

On one side, WikiLeaks founder Julian Assange criticized Google's “censorship” and offered Damore a job.

A Harvard University scientist tweeted that, “Google drives a big sector of tech into the arms of [President Donald] Trump: fires employee who wrote memo about women in tech jobs.”

And U.S. Sen. John Cornyn, a Texas Republican, accused Google of being an “ideological echo chamber” that can't handle thoughtful critiques of its monoculture.

On the other side, Anita Hill, the U.S. feminist icon and of counsel at Cohen Milstein Sellers & Toll, urged women to take legal action. In an op-ed article in Tuesday's New York Times, Hill wroteabout the lack of diversity and equality in the tech industry.

“The leaked Google memo should serve as an alert about how deeply and passionately anti-equality attitudes are held,” her article said. “It's time women in tech consider taking advantage of the law to disrupt the industry once and for all.”

Contact Sue Reisinger at [email protected].