Potential Legal Battle over Controversial Google Memo

August 16, 2017

Did the Google Memo cross the line of Free Speech and move into creating a hostile work environment? This is question that a court may likely have to decide if James Damore follows through this threat to sue Google for his termination.  Damore was employed as an engineer at Google since 2013. He was recently terminated after posting a memo internally at Google.  He has stated that he will sue Google for his termination. Damore emailed the New York Times stating, “I have a right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behaviour, which is what my document does.”

That document is a 10 page memo entitled “Google’s Ideological Echo Chamber: How bias clouds our thinking about diversity and inclusion.”  In it, Damore criticizes the company’s efforts in creating a more diverse work place.  The memo was circulated on an internal Google board before being leaked to the media and going viral about a week ago.  Damore states that “Google’s left bias has created a politically correct monoculture that maintains its hold by shaming dissenters into silence.” Damore goes on to state several times that he does not disagree with diversity, nor does he believe that minorities have the same experiences as those in the majority.  He does offer a slew of suggestions on how to correct what he perceives as Google’s intolerant system of silencing conservatives and those with opposing ideological viewpoints. This seems to be the basic point that Damore was trying to express, but his overarching message is what has gotten him into trouble.

Sundar Pichai, Google’s Chief Executive, stated that portions of Damore’s memo “violate our code of conduct and cross the line by advancing harmful gender stereotypes.”  Many portions discuss and criticize Google and the procedures and practices it employs in order to create diversity. But other portions of the memo suggest that biological differences between men and women play more of a role in gender gaps and inequality.  He wrote, “I’m simply stating that the distribution of preferences and abilities of men and women differ in part due to biological causes and that these differences may explain why we don’t see equal representation of women in tech and leadership.”  From there he goes on to discuss how more women on average have more “openness directed towards feelings and aesthetics rather than ideas”, “extraversion expressed as gregariousness rather than assertiveness”, and “Neuroticism (higher anxiety, lower stress tolerance).” He also implies that we see more men in leadership positions because they have a “higher drive for status.”  This goes beyond criticizing Google’s attempts at diversifying its workforce.  According to Google the memo is making other employees uncomfortable and even unsafe in expressing opposing viewpoints.  Google had to cancel a Town Hall style meeting to address the memo because questions as well as some of the names of those opposing the memo were leaked, and those people were being harassed and even threatened by groups outside of the company.

If Damore files suit against Google this could result in a very difficult balancing act for the court. On one hand you have the protected free speech of an employee.  Is this just an attempt to discuss the perceived problems with the Google’s policies and the environment it is creating? Are Google’s policies on diversity potentially silencing a group of people with nonconforming ideas? And on the other hand, Google is attempting to protect its employees from a potentially hostile work environment.  Is Damore going beyond criticizing his employer by also belittling co-workers and potentially creating an environment that fosters harassment based on gender stereotypes?  When deciding to terminate Damore, Google had to weigh the importance of his free speech, the harassment and discrimination this rhetoric could create and the potential Title VII hostile work environment claims against Google.  It is likely that a court will soon have to do the same.

Photo credit: REUTERS/Mark Blinch

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