Tuesday, August 8, 2017

About that guy who got fired from Google for writing that memo . . . .

The Setup

By now, you have probably already heard about the Google engineer who got fired for writing that memo - you know, this one. The memo addressed controversial subjects, and concluded in part:
Differences in distributions of traits between men and women may in part explain why we don't have 50% representation of women in tech and leadership.
The memo described "men's higher drive for status," discussed biological differences between the sexes, and concluded that "not all differences are socially constructed or due to discrimination." It also decried an "ideological echo chamber" at Google.

So, Google fired him for "advancing harmful gender stereotypes" and now he wants to sue. Does he have any viable claims? Sure sounds like it! That doesn't mean he'll ultimately be successful, just that he can likely plead some claims to get this in to court (following exhaustion of some administrative agency procedures).

A few caveats: 1. I don't know anything about California's bajillion (rough estimate) state-specific employment laws, so I'm only covering federal law; and 2. there are always countless facts that are not available to the public.

National Labor Relations Act (NLRA)

Based on this NYT article, it sounds like he's setting up NLRA retaliation claims. He may have a claim for retaliation for "protected concerted activity." Employees have the right to act  together (in "concert") for mutual aid or support to address the terms and conditions of employment.

The engineer distributed a memo to co-workers raising concerns about various employment practices at Google - sounds like protected activity to me. It also seems pretty clear that he was fired in retaliation for the memo. Per the NYT story, he actually also filed a charge with the NLRB prior to his termination (which would also be protected activity).

In other words, he's got a pretty nice NLRA retaliation claim cooking if he is in fact a covered employee (supervisors are generally not covered and I don't know enough about his work responsibilities to analyze this point). However, even protected conduct may lose its protection if it crosses the line - unfortunately, "the line" is very poorly defined (something like egregious, abusive, malicious, opprobrious, etc.). Google may have a decent defense if it can point to sufficiently inappropriate content in the memo. However, that's a tough burden for employers to clear (as a reminder, sometimes even calling your boss a "motherf*cker" is not enough to lose protection).

Title VII

Title VII prohibits discrimination on the basis of certain protected characteristics, including race and sex. It also prohibits retaliation against employees who oppose workplace discrimination based on those protected characteristics. To state a prima facie case of Title VII retaliation we need: (1) protected activity; (2) materially adverse action; and (3) a causal connection between the two.

Let's go to the memo:
Stop restricting programs and classes to certain genders or races. These discriminatory practices are both unfair and divisive . . . . Discriminating just to increase the representation of women in tech is as misguided and biased as mandating increases for women’s representation in the homeless, work-related and violent deaths, prisons, and school dropouts.
That sounds an awful lot like opposition to discrimination on the basis of race and sex (and, yes, men are just as much a protected class as women under Title VII). So we have element one. He was fired, so that will easily meet element two. And, again, he was pretty clearly fired for the memo, so that's element three.

That does not mean the employee wins though. Google can still prevail by showing that it had a legitimate non-retaliatory reason for the termination. Google could argue that he was not fired for the parts of the memo that opposed discrimination, but rather for the other parts of the memo that allegedly "advanc[ed] harmful gender stereotypes." Disentangling the protected from the unprotected content (and assigning Google's motives accordingly) could prove difficult though.

Conclusion

Based on the information I've seen so far, it sounds like he has some viable claims for NLRA and Title VII retaliation. Call it a hunch, but I think this guy may refuse a confidential settlement and payout to fight this one out in what he perceives as an ideological battle.