Northern California Record

Thursday, September 19, 2019

Fired Google memo writer exploring legal action may not have case against company, lawyer says

By Jon Campisi | Sep 1, 2017

SAN FRANCISCO — A former Google engineer who was fired after the surfacing of an internal memo he wrote questioned whether the gender gap at the company may be explained by biological differences between men and women and not necessarily discriminatory practices is exploring pursuing legal action against the company.

James Damore, the author of the memo “Google’s Ideological Echo Chamber,” has a complaint pending against the company with the National Labor Relations Board (NLRB).

The NLRB complaint, known as a charge, does not appear to be publicly available, although the docket sheet on the agency’s website says the allegations in the case include "Coercive Statements (Threats, Promises of Benefits, etc.)."

Joshua Ganz

In his memo, which was originally shared on an internal company discussion board and later obtained and reprinted by the technology website Gizmodo, 28-year-old Damore says that while he strongly believes in gender and racial diversity, he thinks that Google has created several discriminatory practices in its effort to achieve equality in gender and race representation.

Some of those practices he outlined include programs, mentoring and classes for people of a certain gender or race, a high priority queue and special treatment for “diversity” candidates, and reconsidering any set of people that is not “diverse” enough but not showing that same scrutiny in the reverse direction, which Damore calls “clear confirmation bias.”

“These practices are based on false assumptions generated by our biases and can actually increase race and gender tensions,” Damore wrote in the memo. “We’re told by senior leadership that what we’re doing is both the morally and economically correct thing to do, but without evidence this is just veiled left ideology that can irreparably harm Google.”

Damore has gone on record saying he plans to pursue legal action against Google, which would most likely come in the form of a lawsuit.

It is unclear whether he has retained legal counsel at this point for any potential future litigation.

Damore has been quoted in interviews saying it is illegal under federal law for a company to terminate an employee who has filed a charge against it with the National Labor Relations Board and that he believes this might have been what occurred with his former employer.

Google representatives have stated to news outlets that the company didn’t learn of the NLRB charge until after the firing and that Damore was let go for violating the company’s Code of Conduct by advancing harmful gender stereotypes in the workplace.

At least one employment lawyer has said that Damore may have a legal case against Google.

Eve Wagner, a partner with L.A.-based Sauer & Wagner, told Wired that Damore likely has a legal leg to stand on since the National Labor Relations Act, while traditionally applying to union organizing, can also be interpreted to protect employees who discuss the workplace with other employees, something that might cover Damore’s internal memo.

The Wired report also said Damore, in any future legal action, may plan to refer to a California law that makes it illegal for employers to retaliate against employees who complain about illegal workplace conditions.

Wagner was quoted as saying that one avenue Damore’s attorneys might take is to argue that the memo was protected under state law because it related to alleged unequal treatment of workers.

According to reports, Google happens to be in the midst of a federal Labor Department investigation concerning allegations of unequal pay to women.

Other lawyers, however, disagree.

“I don’t think he’s going to get a lot of traction,” Joshua Ganz, an employment attorney with the Hatboro, Pennsylvania, law firm Duffy North, told the Northern California Record

Ganz said there is no protected First Amendment right for individuals within a nonpublic-sector job.

At the same time, Ganz said, the NLRB has been taking a more keen interest in these types of protected concerted activity cases as of late, so it’s hard to guess what type of outcome would materialize out of that process.

The NLRB has the ability to levy fines against a company or order a rehiring of an employee it found to be improperly terminated, Ganz said.

Ganz said from his understanding of Damore’s memo, it will be hard for the fired worker to claim that he was trying to protect a certain class of workers at Google, even if that was his goal, since the wording of the memo seemed to have the opposite effect; it called into question certain female biological traits.

As for any potential lawsuit, Ganz simply doesn’t see Damore as having a strong case, even if a suit made it through the courtroom doors.

“I don’t think he’s got the goods there,” Ganz said.

Ganz stressed that his opinion doesn’t stem from either a liberal or conservative ideological viewpoint but rather from nearly 20 years of practicing law, with much of that time devoted to employment litigation. 

Ganz said this case might be looked at differently if Damore had penned a document that was whistleblowing in the sense that Damore was putting forth information showing that Google was actively discriminating against women purposely, but that doesn’t appear to be the case in this instance.

There is also the issue of California being an “at-will” state, meaning employees can be terminated with no requirement on the company to offer a specific reason for the firing.

Then again, California is known as a particularly employee-friendly state, so there’s no telling on how this case may play out, Ganz said.

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