Damore’s Concerted Critique

It must have been awful, aside from the huge paychecks, working for Google.

[A] pervasive environment of disparaging jokes and demeaning language amongst colleagues; a climate of bullying, mocking, and personal attacks from superiors and others in power; an open endorsement by superiors of bullying (referred to internally as social pecking); an unwillingness by superiors and administrators to act upon threats of violence; the use of incentive programmes to promote and celebrate harassment; a set of training programmes that foment hostility through emotionalised and unnuanced company-endorsed lectures; and a number of other mechanisms that disincentivise or punish political expression,…

No, this wasn’t the way minorities were treated. Nor women. This was the way they treated anyone who failed to keep pace with social justice As James Damore found out the hard way. the claims that they were open to criticism may have been exaggerated. 

But as twitter lawyers explain, Damore was an “at will” employee, and as such had no right to his job and could be fired “at will.” Except that’s yet another gap in the twitter curriculum, as an at will employee can be fired for any reason or no reason, provided it’s not for an unlawful reason. One such unlawful reason is engaging in concerted activity under § 8(a)(1) of the National Labor Relations Act. Another, for example, would be race, gender or the other characteristics enumerated in Title VII.

And so NLRB Region 32 field office associate general counsel Jayme Sophir of the Division of Advice wrote a memo about Damore’s memo with her advice.

[Damore’s] statements about immutable traits linked to sex—such as…men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding [his] effort to cloak [his] comments with “scientific” references and analysis, and notwithstanding [his] “not all women” disclaimers.

Distilling Damore’s memo into a sentence isn’t easy, and perhaps Sophir should be given some latitude for her dubious description. Then again, even her simplistic characterization doesn’t claim Damore was wrong.

This is a rather tendentious and misleading summary of what Damore said about gender-based differences. Damore’s Google memo did not say that the average woman was less intelligent than the average man; he said that men were overrepresented at the extremes of intelligence, both the bottom and the top of the IQ distribution. And this is in fact consistent with findings of social science research, and is widely believed by evolutionary biologists. Geoffrey Miller, a prominent evolutionary psychologist, wrote in Quillette, “For what it’s worth, I think that almost all of the Google memo’s empirical claims are scientifically accurate.” As David Brooks of the New York Times notes, “scientists in the field have backed up his summary of the data.” “Despite how it’s been portrayed, the memo was fair and factually accurate,” Debra Soh wrote in The Globe and Mail in Toronto.

But as Sophir concluded, masking one’s protected critical employment views in factually accurate science does not absolve them from being sexual harassment.

Sophir concluded that Damore’s memo contained both protected statements (like criticizing Google) and not protected statements (perpetuating stereotypes about women), and that Google ultimately fired Damore for things he said that were not protected under federal law. Sophir wrote in her memo that workplaces should have the ability to “‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace.'”

An irreconcilable conflict is created when the law provides a right to criticize your employer in a concerted activity to address employment conditions, but you can’t explain the basis for your criticism, or provide arguments in support of your position, if that might make some employees feel badly. And curiously, Sophir’s support of management’s prerogative to “nip it in the bud” would have made an excellent slogan for the Pinkertons. Was that what she was going for?

Nor, Sophir concluded, can you Gertrude your way out of your complaint.

She also said that Damore’s statements about women in his memo “were discriminatory and constituted sexual harassment, notwithstanding effort to cloak comments with ‘scientific’ references and analysis, and notwithstanding ‘not all women’ disclaimers.

While § 8(a)(1) may give employees, even “at will” ones, the right to engage in concerted activity to criticize the terms and conditions of employment, Sophir concluded that it does not allow complaints that might hurt other employees’ feelings, like gender-stereotyping. This presents something of a Catch-22 when the nature of the complaint is gender-stereotyping based on ideology rather than facts.

Wrong or not, Damore’s discussion of gender-based difference was not gratuitous. It was an explanation of why Google’s diversity policies were themselves discriminatory — rather than being a remedy for discrimination against women at Google. Such complaints of discrimination are protected against retaliation by Title VII of the Civil Rights Act. That is true even when the discrimination turns out to be legal, such as affirmative action plans that discriminate against white males to a limited extent. (See, e.g., Sisco v. J.S. Alberici Const. Co., 655 F.2d 146 (8th Cir. 1981) (employee protected even if affirmative action plan was legal); Parker v. B & O Railroad Co., 652 F.2d 1012 (D.C. Cir. 1981); Setser v. Novack Investment Co., 638 F.2d 1137 (8th Cir. 1980)).

The point is not whether one agrees with Damore, but whether criticizing discrimination using arguments inconsistent with social justice ideology constitutes sexual harassment.

Sexual harassment is forbidden by law, and employers are not allowed to tolerate it. So by branding Damore’s memo as “sexual harassment,” the author of the NLRB’s advice memo is trying to compel employers to punish similar critiques of employer diversity policies, which she says is a “reasonable precaution against discord and bitterness in the workplace.” But courts have found that the First Amendment protects even criticisms of affirmative-action that result in workplace discord and bitterness.

Essentially, the conflict between Damore’s right to complain and other employees’ right to a workplace free of what they perceive to be “hostility,” giving rise to an employer’s right to fire the complainer, to “nip in the bud” discord and bitterness, produced a memo that elevated the hurt feelings over the free-speech rights of the complainer.

While the Wagner Act may protect an employee’s right to complain, that right only extends as far as the feelings of other employees. The Wobblies would not have been pleased.

29 comments on “Damore’s Concerted Critique

  1. Sgt. Schultz

    The problem with Damore’s memo is that it was too well done, revealing the rift between ideology and reality. What could possibly be more sexually harassing than facts?

    1. SHG Post author

      The problem with Sophir’s memo was that the content of Damore’s memo influenced its protection under the Wagner Act and the First Amendment.

  2. John Barleycorn

    You’ve haven’t been listening to Britney Spears’ again have you esteemed one? Tsk, tsk, tsk…

  3. B. McLeod

    There is a legal standard for “sexual harassment” which involves more than a memo “perpetuating stereotypes about women.” So, they fired Damore for a combination of protected statements and some statements that they did not like, but which were not “sexual harassment.”

    1. SHG Post author

      I suspect you’re referring to the Title VII standard of “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” Meritor Savings Bank v. Vinson, 106 S. Ct. 2399, 40 EPD ¶ 36,159 (1986). But Title VII law is distinct from NLRA, so the NLRB lawyer wouldn’t know the standard when concluding that 8(a)(1) concerted activity was unprotected sexual harassment under Title VII.

      See how that fits together nicely?

      1. PseudonymousKid

        “Nicely,” you say. The puzzle pieces may fit together, but the picture they paint isn’t so nice. Too bad for Damore solidarity among workers only goes so far at Google. Your chosen meme illustrates the issue perfectly. Me, Me, Me, Me, Me, and not: us, us, us, us, us, us.

        “Solidarity is not a matter of sentiment but a fact, cold and impassive as the granite foundations of a skyscraper. If the basic elements, identity of interest, clarity of vision, honesty of intent, and oneness of purpose, or any of these is lacking, all sentimental pleas for solidarity, and all other efforts to achieve it will be barren of results.” Eugene V. Debs: “A Plea for Solidarity.”

        You can’t mention Wobblies without a Debs quote. I want him here now to focus the current rage to productive ends. The current “woke” have nothing on him. Solidarity with the lowest of the low, the hated, the scorned is our duty. Neither the state or employers or either party care enough about the commoner to represent his interests.

        If Damore can’t question diversity for diversity’s sake, then the entire concept is bogus. His coworkers who support his ouster are traitors. Fuck management. Any worker can criticize anything without fear of reprisal. As it fucking should be from the labor aristocrats at Google to the lowest of the low at gas station and retail outlets.

        Great Great Grandpappy Marx would be ashamed. So would Great Grandad Debs. These progressives are lost.

        1. Fubar

          You can’t mention Wobblies without a Debs quote. I want him here now to focus the current rage to productive ends. The current “woke” have nothing on him.

          Be. Very. Careful. What. You. Ask. For.

      2. B. McLeod

        A long time ago, there was a thing called “research.” Lawyers who didn’t have background in a particular area of relevance would do this “research” before simply running their client under the shore batteries. Some people also called that “competence” back then. (It was a long time ago).

  4. Patrick Maupin

    “An irreconcilable conflict is created when … you can’t … provide arguments in support of your position …”

    Under the old law, sure, that could have been problematic. With the all new, improved FeelzBasedLaw ™ there is no issue here; the only supporting arguments required are about your relative standing as a victim, and that has nothing to do with what was done to you and everything to do with who you are.

    Here we have an admitted white, right-leaning male. He has zero victim points, so he loses.

  5. Rendall

    Great, I was hoping you’d comment on this. But no one on the Twitters seems to know the import and legal force of this (or any) NLRB Advice Memo. How big a deal is this, both to Damore’s quest for justice, and to labor in general? Is it a complete rout of Enlightenment values in US labor, or just a minor skirmish?

    1. SHG Post author

      If you have a legal question, I am available to write a memo about it in the normal course of my law practice. I’m here for you.

        1. SHG Post author

          I can’t believe you played the built-up cred card. Do I not write just for you daily? Is that not good enough for you? Is it? IS IT?!?

          Edit: Now I have a spare minute. Damore has withdrawn his NLRB complaint before the memo issued, instead choosing to file a class action against Google, so the memo will have no impact on him at all. It does, however, reveal how the NLRB would have dealt with the complaint. The memo is used by the regional director to decide whether to proceed with the complaint. It’s only the NLRB lawyer’s advice, and can be overruled, but it’s at worst influential and, more likely, will be followed by the regional director.

          1. Rendall

            Thanks!

            Wow, chilling times.

            While I don’t think the pendulum has yet reached its extreme, I do sense that it’s slowing. The James Peterson Channel 4 interview showed that SJWs can be beaten publicly with reason, confidence and integrity.

            1. that david from Oz

              “Jordan”
              With a tip of his hat and a wink, and a cry of “hi yo silver, away!”, the Grammar Policeman rode off in to the sunset . . .

  6. John Rew

    I’m not sure of the labor laws in the U.S and I realise that organised labor is not what it used to be but here in Australia I believe James firing would be considered harsh and excessive. As a general rule employers are expected to give their employees warnings and the chance to change or stop the offending behaviour. Of course wilful and destructive behaviour can be dealt with differently. It’s hard to imagine James’ memo as being wilful and destructive. It also seems to me that google is guilty of constructive dismissal. An example of this is when an employer constructs a scenario where someone may commit an offence that leads to their dismissal. This certainly seems to apply to google as there appears to be ample encouragement for what James did but no specific directives to stop him being fired.

    1. SHG Post author

      I assume you realize that none of this has anything whatsoever to do with anything, right? I have no clue what the law is in Australia, but whatever it may be, it has zero bearing on US law.

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