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of the law, Ford says. The First Amendment protects people from actions to control their right of free expression on the part of the government—not by private entities such as employers, he says.
“Suppose I’m a committed Luddite, and I believe technology is evil, and I think people should sabotage it,” Ford says. “Google doesn’t have to hire such a person.”
On the other hand, Ford says, Google had plenty of reasons to eliminate Damore from the staff, if only to avoid legal liability for the company’s treatment of women.
“I understand that Google uses peer review in employment decisions,” Ford says. Women could challenge actions affecting their employment status if Google allowed an employee with self-proclaimed sexist views to remain part of its decision-making body, he says.
“My first thought was, that was why Google felt it needed to take this step,” Ford says. The company could also face liability for maintaining a “hostile work environment” for women, he says. That phrase has been used to describe workplaces where women are sexually harassed, or routinely denied opportunity by other means.
Under some laws, employers are forbidden to punish employees for political activity, Ford says. But this is generally interpreted to apply to actions such as running for office, or other political activity outside the workplace, he says. That doesn’t extend to using the company’s own resources (such as Google’s internal communications channels) to voice opinions counter to the company’s interests, Ford says.
Jeannette Cox, a law professor at the University of Dayton School of Law, agrees with Ford that the First Amendment wasn’t designed to prevent employers from controlling speech in the workplace. But under limited circumstances, the National Labor Relations Board protects some speech among employees concerning “group efforts to improve working conditions,’’ such as organizing unions, Cox wrote in a review article on employee speech rights for the American Bar Association in late 2015. But Cox said the NLRB it doesn’t protect complaints about an employer “made solely by and on behalf of the individual employee herself.”
The federal labor rights statute enforced by the National Labor Relations Board could apply to a non-union employer such as Google, according to San Diego employment law attorney Dan Eaton. In a CNBC guest commentary, Eaton argues that Damore’s memo could be considered protected speech because he was “communicating with fellow employees about improving working conditions. The purpose of the memo was to persuade Google to abandon certain diversity-related practices the engineer found objectionable and to convince co-workers to join his cause, or at least discuss the points he raised.”
If winning his job back is Damore’s aim, a lawsuit could be an expensive and ultimately futile exercise. But if Damore wants to make his anti-diversity views part of acceptable public discourse, he may get somewhere by advancing the position—largely incorrect—that the First Amendment guarantees the right to free speech on the job, Ford says.
A lawsuit could give Damore’s anti-diversity opinions “a higher status even if they lose legally,” Ford says. “I do think you’re seeing a lot of uses of the First Amendment that are almost completely divorced from the First Amendment,” Ford says.
If Damore files a suit that gains any traction in court and in the media, Google and other tech companies could be defending themselves on two flanks—on one side, responding to criticisms that they censor staffers who openly express their belief in disparaging stereotypes, and on the other side, facing pressure from other staffers and the government to eliminate discrimination and preserve a workplace environment that’s hospitable to all.