Google fired engineer James Damore after he wrote a 10-page document about "Google's Ideological Echo Chamber." Many people called for his head on a platter, and Google delivered. He was fired for perpetuating gender stereotypes and violating Google's code of conduct. Fair enough. California is an at-will state, and if a company doesn't want an employee to perpetuate any gender stereotypes, that's its right.
Except when it isn't.
Employment attorney Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek, wrote an article for CNN before the firing that gave three reasons why Google shouldn't fire, or possibly even discipline Damore (who was unidentified when Eaton wrote it).
Federal law allows employees to talk about working conditions.
Eaton points out that employees are allowed to talk among themselves about working conditions. This is why your boss can't ban you from sharing your salary with your co-workers. Google went through a different nightmare last year when employees started collecting and sharing salary information.
But working conditions aren't limited to salary discussions. The purpose of his essay was to talk about what he perceived as a need for change in the company. He shared it internally, with his co-workers. In other words, this just might be a protected activity.
You can't fire someone for political views--in California.
In most states, political views aren't protected in the workplace, but in California they are. Love his views or hate them, they are definitely political in nature. Attorney Eaton writes:
An employee does not have free reign [sic] to engage in political speech that disrupts the workplace, but punishing an employee for deviating from company orthodoxy on a political issue is not allowed either. Brown [Google's vice president of diversity, integrity & governance] acknowledged that when she wrote that "an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions."
California law prohibits employers from threatening employees in order to get them to change their political views.
The engineer as a whistleblower.
Damore claimed that some of Google's practices violate federal discrimination laws. When we talk about affirmative action, federal law allows you to hire a woman or minority candidate over a male or white candidate if both are equally qualified. But what it doesn't allow you to do is hire a less qualified female or minority candidate. Damore believed Google's policies were doing just that.
To be protected, "the engineer doesn't have to be right that some of Google's diversity initiatives are unlawful, only that he reasonably believes that they are."
Former senior Google employee Yonatan Zunger wrote that this engineer should have been fired because his memo makes it clear that Damore was a terrible engineer. I know nothing about computer engineering, so I'll take Zunger's word for it. Maybe this guy was terrible.
However, the problem with firing him now is that it is retaliation for the memo. If Damore was on a performance improvement plan and this was his last ditch effort to save his job, then, no, he's not protected. But if he was considered an acceptable performer the day before he wrote the memo, then his engineering skills can't come into play in this decision.
Damore has stated that he is looking into his legal options. I'm sure a lawsuit will be forthcoming.