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.