The memo that rocked Silicon Valley this week brought the culture wars to the heart of the tech sector, outraged plenty of workers at Google and beyond, and sparked a nationwide debate over workplace diversity. But its legal ramifications remain unclear.
The anti-diversity screed that had been shared internally among staff at Google first leaked to the press last weekend. Written by now infamous engineer James Damore, it tried to explain that the gender pay gap exists because women are biologically predisposed to work differently than men. On Monday, Google swiftly announced his firing, saying that Damore had breached the company’s code of conduct.
The blowback was swift and fierce: Free speech advocates and critics of political correctness are crying foul, some using dystopian terms like “thought crimes” to describe the situation. Both Wikileaks’ Julian Assange and alt-right social network Gab, among others, have taken up Damore’s case as yet another example of liberal ideals run amok. Then the engineer told reporters he was going to sue the company, and last night he filed a claim with the National Labor Relations Board (NLRB). But the question remains: Does Damore have a case? Though some legal scholars have indicated that he might, the truth is that any legal battle will be a tough slog.
“I think it’s interesting that he filed a claim with the NLRB,” says Miriam Cherry, a law professor at Saint Louis University who specializes in employment law. “That’s maybe not the typical route that most people would take.” This claim invokes a certain section–8(a)1–which prohibits employers from interfering with workers who are organizing to advocate for their own labor rights, or, as Cherry (and the law) describes it, “protected concerted activity.” Often, NLRB claims involve unions, and Google–along with nearly every other tech company–is not unionized.
The idea is that if someone is making an appeal to workers on behalf of workers, the company cannot retaliate and fire that person. Though workers represented by unions are given more protections, section 8(a)1 protects everyone. Cherry offers herself as an example, explaining that she’s a professor who’s not in a union, but she still has the right to reach out to other employees about working conditions. That action, she says, would be protected. Because Damore wrote his memo in the style of a call to action to his coworkers to discuss Google, it could potentially be protected under section 8(a)1.
Cherry’s colleague, professor Matt Bodie, who specializes in labor law and the NLRB, is also intrigued by her interpretation of Damore’s situation. “From a workplace perspective, you can say [Damore] was trying to rally his fellow employees to oppose certain diversity initiates that Google has taken up,” says Bodie. Those types of claims, Bodie adds, are generally brought by more than one person–for example, a group of people who collectively complain about their wages or conditions. This complaint is different: While he’s reaching out to other employees, Bodie notes that the memo is “still personal.” And this is a situation that the Labor Board hasn’t really addressed yet.
Another route, which Damore has yet to take up in court, is his protection of free speech. This is a claim that will likely be even harder to prove. Law professor David Yamada of Suffolk University in Boston puts it plainly: “Private sector employees do not have general free speech rights.” He adds that more often than not, courts defer to companies when it comes to how they interpret their own policies. Given that Google says he was fired for violating its code of conduct, it will likely be hard for Damore to claim the opposite.
Beyond the NLRB, Damore could go a few routes. One would be where he invokes Tile VII of the Civil Rights Act of 1964, which makes it illegal for employers to discriminate based on sex, race, religion, etc. Essentially Damore’s claim would be one of reverse racism: That since he is a white man, he received less than favorable conduct from Google. This would be a tough case to make either in court or in real life. Damore could also use a California state law that prevents employers from retaliating against employees over political activity. Though, as Bodie puts it, Damore’s conduct was more ideological activity: “He’s advocating for an internal Google change.”
Damore also claims that Google fired him in retaliation for filing an NLRB claim. That too will likely be hard to prove, unless emails are discovered where executives are describing such a scenario. Not to mention, according to online NLRB records, Damore appears to have filed his initial NLRB claim after being fired.
In short, it’s going to be an uphill battle for Damore. Though some have said that his case may have a chance, it’s still going to depend on very specific interpretations–many of which have yet to be argued before the NLRB. I reached out to Damore asking about his legal route and have yet to hear back.
What’s The Endgame?
It’s also important to note that the NLRB complaint isn’t a potential payday for Damore: The best he could do is for the board to take on his case and get him reinstated, or award him back pay for time lost. So if he’s hoping to score a big check, this wouldn’t be the avenue to take. All the same, it’s cheaper for the time being, because Damore doesn’t have to hire a lawyer, and instead just walks into an office and files a few papers. And he could pursue punitive damages later and use this current NLRB route to maintain steam.
There’s also plenty of irony in Damore’s situation, says Bodie, noting the aid he’s likely to get from conservative groups, many of which are outraged about his termination. After all, he is filing an employee rights claim–one which he would have a better shot at winning were he in a union–and conservatives have long worked to make it harder for employees to pursue legal remedies over workplace conditions. Though Damore has become a symbol of what happens when liberal values supposedly infringe on others’ beliefs, his path to vindication was shaped and enabled by liberal advocacy.
Another issue of debate that touches on employment law is whether or not Google made the right call by firing Damore. Cherry believes that it likely was the company’s only choice. If Google had let Damore stay, the company would have become even more of a target for a class-action suit from women who had proof that someone giving performance reviews was stereotyping them. “The CEO had to do something from a liability standpoint,” she says. Not that firing Damore forestalled such a potentiality—more than 60 women are already considering filing a class action lawsuit over sexism and pay gap, reports the Guardian.
All the same, speculators are going to speculate–everyone loves a media circus. The odds, however, seem to be stacked against Damore. “Since we’re lawyers, we like to say, ‘Could there be anything [to the case]?'” says Cherry. “If it were me, deciding whether I would take this person on as a client–[asking] hey, what are my chances? I wouldn’t rate them very highly.”
Correction: An earlier version of this article misstated where Suffolk University is located. We apologize for the error.