Monday, February 19, 2018

NLRB dismisses James Damore charge against Google—complaints about too much diversity are not protected


It is lawful for an employer to fire an employee who complains that his workplace is too diverse

According to the NLRB, the answer, at least under federal labor law, is yes, the termination is legal.

Remember James Damore? He was he Google engineer fired after he circulated a 10-page memo critiquing his employer’s efforts to maintain gender diversity within its ranks. He argued that women are underrepresented in tech not because of workplace biases and discrimination, but because of inherent psychological differences between the sexes. Damore specifically (and offensively) cited female “neuroticism” and lower IQ as some of these inherent differences.

After his termination, Damore filed an unfair labor practice with the NLRB, claiming that the termination violated his right to engage in protected concerted activity.

Late last week, the NLRB released its decision [pdf], in which it (thankfully) declined to issue a complaint on Damore’s behalf.

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:
An employer’s good-faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws. … [E]mployers must be permitted to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.
Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions.  

Thus, the NLRB will not hear Damore’s wrongful termination claim.

All is not lost, however, for Damore. Still pending is his class action lawsuit (a 161-page opus), claiming that Google discriminates against men, and retaliated against him when he complained about it.

For now, though, employers can rest a little easier with the thought that at least the NLRB will not recognize the claim of an employee fired for complaining about too much diversity, at least when the memo’s argument is based on offensive stereotypes.

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