Google headquarters, Mountain View, California

Updated at 1:43 p.m. PST

Google Inc. did not violate federal labor law in firing an engineer who wrote a widely circulated memo that argued women were not as biologically fit as men for tech jobs, according to a National Labor Relations Board lawyer's memo that was disclosed on Feb. 15.

Former Google engineer James Damore filed a complaint with the labor board after he was terminated by the Mountain View, California-based company. Damore's memo, which went viral, called inclusion efforts an “ideological echo chamber where contrary views are shamed into silence.” The memo cemented an impression that tech has been and still is a white, male-dominated industry.

NLRB lawyer Jayme Sophir, associate general counsel in the agency's division of advice, concluded last month that Damore's memo contained both protected and unprotected speech but that Google terminated the engineer based on reasons not protected by the National Labor Relations Act. Sophir's memo, written to a regional director, was dated Jan. 16.

Damore's case was closed in January. Damore and other former Google employees filed a separate lawsuit, seeking class action status, against the company in Santa Clara Superior Court. Bay Area lawyer Harmeet Dhillon represents the employees in that case and served as Damore's attorney before the federal labor board.

Paul Hastings partner Al Latham in Los Angeles, a lawyer for Google, said in a statement: “We are gratified that the NLRB General Counsel found that Google acted lawfully in not allowing this employee to create a hostile work environment.” Paul Hastings partner Cameron Fox was also on the Google team at the NLRB.

Dhillon was not immediately reached for comment.

Damore's internal memo, which originally circulated among his co-workers, attempted to justify a gender gap in the tech industry in response to a series of companywide inclusion efforts to close it. The memo said “women on average are more prone to anxiety” and that women on average have more “neuroticism” and “lower stress tolerance.”

Google determined that certain portions of Damore's memo violated existing policies on harassment and discrimination. The company's HR manager, in justifying the termination, told Damore: “Your post advanced and relied on gender stereotypes to suggest that women cannot be successful in the same kinds of jobs at Google as men. … 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.”

Google said that its action against Damore was not based in any way on the parts of his memo that discuss training and programs offered by Google or about his expression of differing political views.

“Having a different political view is fine. Advancing gender stereotypes is not,” Google said in a statement to Damore, according to the NLRB memo disclosed Friday.

The portions of Damore's manifesto that spoke of work conditions with his colleagues would be considered protected speech, according to the NLRB memo. The general counsel's office agreed with Google that the use of stereotypes based on purported biological differences between men and women was discriminatory and not protected speech.

Sophir noted that two female engineering candidates withdrew from consideration from Google after Damore's manifesto was spread widely.

Sophir added in her instruction to the regional director: “Employers have a strong interest in promoting diversity and encouraging employees across diverse demographic groups to thrive in their workplaces. In furtherance of these legitimate interests, employers must be permitted to 'nip in the bud' the kinds of employee conduct that could lead to a 'hostile workplace,' rather than waiting until an actionable hostile workplace has been created before taking action.”

Google chief executive Sundar Pichai, recently addressing Damore's firing, said he had no regrets about the decision itself but, rather, how he believes the decision has been interpreted.

“I regret that people misunderstand that we may have made this for a political belief one way or another,” Pichai said, according to a report in Verge, the tech publication. “It's important for the women at Google, and all the people at Google, that we want to make an inclusive environment.”

This report was updated with comment about the NLRB advice memo.

The NLRB advice memo is posted in full below:

 

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