In August, Google fired engineer James Damore for an internal memo he wrote that questioned the role of biology in career choice. He wondered if the reason there were fewer women in tech than one might expect had more to do with innate differences between men and women than with discrimination, and suggested that Google's drive to increase the number of women in the company led to discrimination against men.

The National Labor Relations Board (NLRB) rejected Damore's claim that he was fired for engaging in a protected "concerted activity." This is a specific term that refers to protections employees have to discuss their working conditions. It's what protects you from being fired for discussing your salary or complaining about your boss. Damore argued that he was discussing working conditions and, therefore, his termination was illegal.

The NLRB did find that parts of Damore's memo were protected, but that Google didn't fire him for the protected parts. The NLRB concluded that:

The Employer determined that certain portions of [Damore's] memorandum violated existing policies on harassment and discrimination... The Employer terminated [Damore's] employment. 

What the NLRB didn't look at was whether Damore's statements that women are "more prone to "neuroticism"--resulting in women experiencing higher anxiety and exhibiting lower tolerance for stress"--and that "men demonstrate greater variance in IQ than women" are actually true. While these are not the only concepts addressed by Damore, they are the ones the NLRB focused on.

Scientific American says "anxiety disorders are more common in women," and Psychology Today notes that men do have higher variability in many things, including IQ. Both publications are mainstream. So, if Damore's statements were not scientifically controversial, why shouldn't they be protected?

The Board concluded that while portions of Damore's memo might constitute protected concerted activity, Google fired him solely because of the unprotected portions of his memo--his discussion about the biological differences between the sexes, which "were so harmful, discriminatory, and disruptive" as to have violated Google's policies against harassment and discrimination.

In other words, companies are allowed to set their own policies and enforce them. Because Damore's statements caused disruption, Google had a reason to remove him from its payroll.

This does not mean that Damore's lawsuit is over. It's still going forward. He just does not have the backing of the NLRB, which weakens his overall case. While I predict that this case will ultimately settle behind closed doors, I hope that it does not. I'd like to continue to see this play out as it challenges the limits of what concerted activity in the workplace is.

Regardless of the outcome, it will be a valuable tool for businesses--especially those in California--to determine what is and what is not protected behavior in the workplace.

Published on: Feb 20, 2018