The Fired Google Engineer, the First Amendment, and the Alt-Right

Xconomy San Francisco — 

Google software engineer James Damore confirmed to Bloomberg on Monday that Google fired him for circulating a lengthy memo on his views that women are biologically less suited to tech work than men.

His “manifesto” was spread through Google’s internal communication channels over the weekend, and obtained by Gizmodo and other tech publications. Damore expressed his opinion that women are underrepresented in tech companies such as Google, not because of discrimination, but because, on average, women are naturally more inclined to concentrate on feelings rather than on ideas. Damore also professed his belief that women are more “neurotic” or prone to anxiety than men, as well as less competitive and more inclined to be collaborative.

Google acted quickly, firing Damore on grounds that his memo violated the company’s code of conduct by propagating harmful gender stereotypes, according to the New York Times. Damore had criticized Google for its initiatives to promote diversity.

Damore’s ideas were roundly denounced by both women and men in the tech industry, including former Googler Yonatan Zunger, who is now at machine learning startup Humu. Zunger, an experienced engineer, said in a Medium post Saturday that traits Damore defines as female, such as empathy and the ability to collaborate, “are the core traits which make someone successful at engineering.”

But in the memo, Damore claims his views are shared by many fellow Googlers who have told him privately that they’re grateful to him for raising opinions “they agree with but would never have the courage to say or defend because of our shaming culture and the possibility of being fired.”

It’s Damore’s claim that Google stifles dissent, in the memo he called “Google’s Ideological Echo Chamber,” that may keep his ideas in the forefront of public debate. Signs are that he may sue Google, claiming a violation of his First Amendment rights, or of his rights under federal labor law.

If Damore challenges his firing on grounds that Google suppressed his free speech rights, he’s unlikely to win, legal scholars say. But Damore may already have achieved part of his aims, in spades. His opinions—though offensive to many—are now part of a public discussion in arenas much broader than Google internal memos.

Damore’s case has dragged Google into the ongoing political and cultural battle between right and left in the U.S.—between conservative groups that resist diversity efforts, and employers such as universities that try to counter discrimination. This could turn out to be a bigger headache for Google (and potentially other companies) than an employment rights suit it may be likely to win.

David French, writing for the conservative magazine National Review, blasted Google for Damore’s firing. “Of course Google did this,” French wrote. “Of course an increasingly radical progressive enclave can’t handle thoughtful critiques of its ideological monoculture.”

“Google is a private company and has wide legal latitude to discipline its employees for their speech, but make no mistake—this is a direct assault on the American culture of free speech,” French added.

Another writer for National Review, Jim Geraghty, eagerly anticipates legal action by Damore. “When does one employee holding an opinion contrary to another employee’s become harassment? My guess is that a lawsuit at Google is going to explore that question under the harsh glare of public scrutiny,” Geraghty wrote.

Other conservative outlets, including The American Conservative and Breitbart, also jumped into the fray. Breitbart published a flurry of at least nine stories supporting Damore’s views.

On the other end of the political spectrum, The Guardian’s Owen Jones wrote under the headline, “Google’s sexist memo has provided the alt-right with a new martyr.”

Jones wrote, “You’re going to hear a lot about [Damore] in the coming weeks: he’ll probably be a star guest on alt-right shows and the rightwing lecture circuit, splashed on the front covers of conservative magazines, no doubt before a lucrative book deal about his martyrdom and what it says about the Liberal Big Brother Anti-White Man Thought Police.”

The portrayals of Google as a standard-bearer for anti-discrimination policies, or a “radical progressive enclave,” can be dizzying, because Google has actually been trying to counter the impression—based on its own workplace statistics—that its hiring and promotion policies significantly disadvantage women and minority members.

If Damore files a lawsuit against Google for suppressing his views against equal opportunity measures, it might be heard even while the U.S. Department of Labor continues its investigation of a significant gender wage gap at Google.

Prior to his firing, Damore had already sought recourse by filing a complaint to the National Labor Relations Board, arguing that Google was trying to silence him, according to the New York Times.

Stanford University law professor Richard Thompson Ford, who specializes in anti-discrimination law and workplace rights, says Damore has a slight, though not non-existent, chance at winning a lawsuit against Google over his firing.

“The First Amendment claim is not strong,” Ford says.

Many people think the amendment gives them the right to free speech on the job, but that’s a misreading 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.