Walter Olson: A Circle of Silence Without Responsibility

In reaction to the hysteria following the Google Memo by James Damore, Walter Olson was one of the few who understood it as the normal, and inevitable, outcome of a regulatory mechanism that’s been in place for generations.

Because Google and Silicon Valley are cutting-edge workplaces, there’s a tendency to assume that the premise of the Google memo furor — “Your erroneous opinions are making my work environment hostile” — is somehow new as well.

But it isn’t the least bit new. The application of hostile work environment law to workplace speech — including basically political or ideological discussions, not just vulgar jokes or unwanted personal talk — goes back decades.

So how did no one notice this was happening for decades? Well, some did, like Walter and Jonathan Rauch.

Jonathan Rauch, for example, in the New Republic in 1997, wrote that “quietly, gradually, the workplace has become an exception” to the general rule that in America the law does not seek to restrain wrongful opinion and expression.

And Rauch explained the indirect mechanism by which this has come to pass: “What the government cannot do directly, it now requires employers to do in its stead: police ‘discriminatory’ speech.”

It didn’t start out that way. Title VII of the Civil Rights Act of 1964 prohibited discrimination against “on the basis of sex, race, color, national origin, and religion.” But what constitutes discrimination has morphed over time from refusing to hire an employee on prohibited bases to a workplace free from conduct that can characterized as discriminatory, which creates a “hostile work environment.”

Now, as then, government pressure on employers to ban speech consists less of direct you-must-ban mandates and more of litigation incentives whose contours are not explicitly announced.

Legal or HR departments will counsel an employer that allowing certain instances or categories of bad speech to go undisciplined might be an offense under Title VII anti-discrimination law, or evidence of one.

This can span use of offensive words to “inappropriate” jokes, to loose talk and, as the sense of what constitutes “harassment” changes with the tide of the sensitivity of the listener, or in Damore case, the reader, whatever they want it to be.

Some enforcement of these laws is done directly by federal agencies, but most of it takes the form of civil lawsuits by disgruntled workers or class action lawyers.

Litigation is costly and hazardous to employers. Companies will expend significant effort to avoid it or to reduce its risk.

Taking steps against tasteless cartoons, or loose talk, such as the discussion of whether there are any psychological or behavioral differences between the sexes in the now famous Google memo, is perceived as cheaper and safer than facing a lawsuit later.

The threat of a Title VII complaint, and its ensuing litigation with the EEOC, and subsequently in court, creates a compelling incentive for employers to silence their own employees, or shed themselves of employees who create a risk of litigation. To an employer, the value of any individual employee’s speech is far less than the value of avoiding regulatory sanctions and litigation.

What does an employer know about speech that will be determined to be “discriminatory” such that it creates a “hostile work environment”? It doesn’t matter. The answer won’t be had until after the EEOC makes its decision to sue or issue a right to sue letter,  and a court rules. By then, the employer is up to its neck in a problem it doesn’t need.

Plus, if the allegations are made public as they often are, it’s a public relations fiasco that is hard to quell. Given the current environment, cries of hostile work environment are turned into a certainty well before any determination is made, as confirmation bias leads the public to believe that every claim must be true. What employer needs that? What’s to be gained by fighting for an employee’s right to speak, or keep a job, when the world of social justice has issued its verdict within seconds of the news breaking?

The initial response is that this is between a private employer and employee, so there are no First Amendment implications involved. But as Walter notes, that ignores the government thumb on the scale by the threat of Title VII and legal sanctions.

So as a way of evading responsibility system-wide it’s kind of brilliant. Those who write laws can blame private actors’ decisions. The private actors in turn can feel as if their hands were tied given the legal reality they might face.

Both sides get plausible deniability, but the outcome is exactly what the incentives demand. So why is this a problem, though, since the upshot is that it eradicates discrimination in the workplace, and certainly no one favors a hostile work environment, right?

But I’ll stop to make just one point: hostile-environment law is not content-neutral. It plays favorites on topics and it takes sides in debates.

By 1997, when I wrote my book, there were already dozens of reported cases in which liability claims cited anti-feminist statements, such as generalizations, stereotypes and loaded language about females.

The speech of this sort that got employers into legal hot water was “frequently not at all obscene but often highly political and analytic in content.”

What made Damore’s memo stand out wasn’t just that it was Google, long alleged to be a boy’s club, or the tech industry, that Nerd Kingdom of misogyny and sexual harassment. It’s that his ideas referred to “harmful stereotypes of women.” Ideas that are decidedly out of favor with feminists and their allies, but hardly calling women “bitches” or making lewd and lascivious remarks to co-workers.

So it’s not just that an employee can’t utter racist or sexist epithets, but that the line has slid down the social justice slope to expression of ideas which may be valid, or at least worthy of discussion, but disfavored by an identitarian group, Rather than confront ideas, Title VII compels the employer to silence his employees, to fire them if it gets bad enough, to assure that the government won’t drop the hammer.

It’s not that the First Amendment applies to private employers’ actions. It’s that a system incentivizes private employers to do the government’s bidding while the government can claim clean hands and the employer can point to the hammer hanging over its head. And the mob is pleased.

20 comments on “Walter Olson: A Circle of Silence Without Responsibility

  1. B. McLeod

    Ironically, the thrust of Damore’s memo was also that views he challenged as erroneous and policies he identified as discriminatory were making his workplace a hostile environment (and that was even before the retaliatory discharge). So, Google basically fired him for a variant of what Google itself is doing.

    1. SHG Post author

      This was Wally’s point that it’s not content neutral. There is a favored political side and a disfavored political side. If you’re on the wrong side, you lose.

      1. Hunting Guy

        Unfortunately, being on the wrong side can get you killed.

        No link per the rules but if you search for “US Marines Test All-Male Squads Against Mixed-Gender Ones – And The Results Are Bleak” it validates Damore’s memo about women.

    2. Patrick Maupin

      Just as there were calls for Damore’s head from the left, there are now calls for google’s head from the right.

      Those calling for google’s head may be right that it has jumped the shark, but as shg points out, practically any sane company in this situation would respond with a firing. Google plays a long game; it will be interesting to see how hard it fights the inevitable lawsuits, and how graciously it reinstates Damore if so ordered.

  2. phv3773

    The guy did something that damaged the reputation of the company, cost the company a lot of money, jeopardized his ability to work with other employees, and compromised the company’s ability to compete for female and non-white new hires. Something like that is going to get you fired every time and it doesn’t much matter that he did nothing illegal, immoral, or fattening.

    1. SHG Post author

      Step back. Why did this memo “damage” anything? Why did this memo go public, then viral? Why did any of this list of horribles happen?

      It’s hard to blame Google for firing Damore, given both the circumstances and the climate. But why are we here?

      1. phv3773

        As I understand it, Damore posted the memo to two internal forums where it was arguably on-topic. It was cross-posted to an internal social platform by Google employees who felt some combination of personal insult and political outrage. From there, it migrated into public view.

        So, to answer your question, it went viral because it was directly demeaning to a significant number of his co-workers.

          1. SHG Post author

            Demeaning (old definition): Causing someone to lose their dignity and the respect of others.

            Demeaning (new definition): What another person says or does that offends you.

          2. phv3773

            In my view, the big error in the paper is that it’s trying to evaluate women and men in groups, but Google employees are not picked randomly. They are picked individually. Group gender roles don’t apply. So when a woman with a graduate degree in computer science, hired by Google to be a programmer and given positive reviews by her managers, reads a memo that says “Your kind are not good programmers, certainly not as good as my kind, perhaps you’d be better off creating pretty icons for the user interface”, she might take offense.

            SHG and I are interested in two different aspects of this matter. I’m interested in the corporate context, the problems of corporate leadership, and the reception of the memo by Google employees. To me, the media fuss is so much hot air. I never know exactly what SHG is thinking, but I believe he is more interested in the Google memo as an example/illustration of a wider trend and gives some weight to the opinions of the pundits.

            1. Brian Cowles

              phv3773,

              RTFM. I’m going to quote a representative paragraph here, using as few words as I can get away with.

              “…I’m not saying all men differ from all women…or that those differences are just…you can’t say anything about an individual given these population distributions….” [last paragraph on page 3].

              So when he explicitly disclaims what you think he claims, how am I supposed to believe that you read the memo at all?

    2. Davis C.

      Sure, it’s not surprising that he got fired. But I wouldn’t say that he has more than a tiny share of the blame. Any damage he caused to the company’s reputation isn’t his fault as much as it is the fault of the media’s awful coverage of the memo, combined with a loud minority of the population’s hatred for all opinions that differ from their own. I don’t know what other options Google had, unfortunately.

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