By now, you've likely heard about the former Google employee, James Damore, who was recently fired for authoring a controversial 10-page memo questioning Google's approach to diversity and inclusion in the workplace. While most assumed litigation would ensue, many were surprised when Damore sought recourse from the National Labor Relations Board, which is the agency responsible for administering the National Labor Relations Act.

On August 8, Damore filed his unfair labor practice charge alleging that Google's termination of his employment violated his rights under the NLRA to engage in the protected concerted activity of challenging Google's policies with his memo. A victory at the NLRB could result in Damore being reinstated to his former position with full back pay-a bitter pill to swallow for a company seeking to distance itself from his divisive views.

While the NLRA was enacted 82 years ago to establish rules for union organizing and labor-management relations, it also gives employees broad rights, including to join in "concerted activities" for their "mutual aid or protection." In recent years, the NLRB has struck down an overwhelming number of employer policies and actions that the agency perceived as having the potential to discourage employees from exercising their rights under the NLRA, even where no union was ever in the picture.

Google is no stranger to the NLRB. The company is facing an NLRB trial later this month on an unrelated charge challenging, among other allegations, Google's Code of Conduct policy, Appropriate Conduct policy, and Policy Against Harassment, Discrimination, and Retaliation. The NLRB General Counsel will argue that these policies interfere with Google employees' rights under the NLRA to freely express themselves about Google's working conditions.

What Was In Damore's Memo?

Damore set out to prove his highly controversial assertion that the gender gap in pay and promotions in the tech industry could be explained by non-bias biological factors and personality differences between the genders. Damore suggested that women, on average, have higher neuroticism (higher anxiety and lower stress tolerance), levels of agreeableness rather than assertiveness (which leads to being more cooperative), inclinations towards feelings and aesthetics rather than ideas, and interest in people rather than things.

He stated his views that, paradoxically, Google has adhered to several discriminatory practices in order to achieve equal gender and race representation. These practices include programs and mentoring for only certain minority groups, a high priority and special treatment for diversity candidates, a lower hiring bar for diversity candidates, and diversity definitions that exhibit confirmation bias.

What Was Google's Response?

Google CEO Sundar Pichai sent an email to all employees and posted a formal response on Google's public blog. While Pichai stated that Google was supportive of "the right of Googlers to express themselves" the response generally denounced Damore's  memo and explicitly stated that portions of it violated the company's Code of Conduct policy by advancing harmful gender stereotypes in the workplace. Soon thereafter, Google terminated Damore.

Chances Of An Adverse Ruling Against Google?

Damore's pursuit of an NLRB charge appears to be crafty and wise. In order to establish his claim, he must show that he was engaged in "protected concerted" activity in issuing the memo.

Establishing the "protected" element should be a simple task for Damore. The subject matter of his memo was clearly protected speech under Section 7 of the NLRA, as it undeniably touches on Google's wages, hours, and other terms and conditions of employment. Damore, however, may face two larger NLRB hurdles: (1) whether he was engaged in concerted activity; and (2) whether his memo was so egregious that he lost the protection of the NLRA.

To establish the "concerted" element, Damore must show that his memo was published with or on the authority of other employees and not solely on behalf of himself. While Damore's use of the plural pronoun "we" throughout the memo suggests concerted activity, it is far from determinative on the issue. If Damore was merely airing personal gripes about Google's policies and culture, as the company will likely argue, he won't be able to establish the "concerted" element. Alternatively, Damore might be able to show that he was engaged in "concerted" activity if he can demonstrate that he was seeking to initiate or induce group action on the issues he raised. In fact, since the memo went viral, it has come to light that a number of other Google employees supported Damore's sentiments and cheered on his efforts to voice these opinions.

On the issue of whether Damore may have lost the protection of the NLRA, Google will need to show more than that just the fact that Damore's statements were controversial and offensive to many or even most other Google employees. If the company relies on longstanding U.S. Supreme Court precedent, it will have to show that Damore was "making a sharp, public, disparaging attack upon the quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's reputation and reduce its income."

What Does This Mean For Your Business?

This situation highlights the growing tension between employer policies and employee protected speech under the NLRA. We have previously reminded employers that the NLRA applies to union and non-union businesses alike, and that the NLRB has shown an increased willingness to examine routine business decisions, policies, and personnel actions in light of employee protected conduct. Recently, the NLRB and the courts have reaffirmed that employees have immense liberty to criticize management using highly offensive language. ( LINK )

Very concerning is the NLRB's disposition to protect speech that is contrary to almost every employer policy against discrimination and harassment. Just last week, the U.S. Court of Appeals for the Eighth Circuit upheld an NLRB ruling that Cooper Tire & Rubber Co. must reinstate an employee, Anthony Runion, who was fired for making racially charged comments toward African-American replacement employees while Runion and others were picketing the company during a lockout. Among other things, Runion yelled, "Did you bring enough KFC for everybody?" He also asked other picketers if they could "smell fried chicken and watermelon?" The court found that Runion's comments were not so vile or threatening that he lost the protection of the NLRA.

The NLRB's expansive rulings on protected speech exemplify the law of unintended consequences-potentially resulting in protection of Damore's hurtful and insensitive comments. Employers seeking to prevent this type of harmful speech in the workplace may have their hands tied by the NLRB. Time will tell whether this case elucidates just how far the NLRB is willing to go to protect an employee's Section 7 rights.

If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com .