Early last month, former Google engineer James Damore, filed a class action lawsuit against his past employer for firing him after he released a 10-page “manifesto” which criticized Google’s diversity policy and argued that females were biologically inferior to men in terms of coding and engineering abilities. Damore stated that he was discriminated against as a white, conservative male and was terminated for expressing his opinion in a mostly liberal dominated environment. Moreover, Damore alleges that Google, and other companies, have set illegal hiring quotas for females and minorities that discriminate against white males like himself.
Regardless of where you fall on the political spectrum, this lawsuit presents an interesting question of how political affiliation and personal opinions, sexist or not, can be used against you and treated as discrimination in the workplace.
Freedom of Speech in the Workplace
There is a lot to unpack here, so first, let’s start with freedom of speech. As many are familiar, the First Amendment of the Constitution protects your ability to express your opinions freely without fear of censorship or retaliation. However, there are certain instances where this does not apply. For example, threats of violence, defamation, and certain obscenities are just a few examples of where free speech is not protected.
In addition to the above criteria, free speech in the workplace changes based on your status as a public or private sector worker. As a public worker, meaning you are employed by the government, you generally have First Amendment rights with a few employment related restrictions. However, as a private sector employee, you have almost no protection and can be fired for making expressions or statements that are counter to company policy.
This is precisely what happened with James Damore as a private employee of Google. In response to the manifesto, CEO of Google, Sundar Pichai, stated that Damore violated the company’s code of conduct policy and was fired for encouraging harmful gender stereotypes. Moreover, it’s important to note here that almost all employees in California are considered at-will employees, meaning that they can be terminated at any time, without an explanation or warning.
California Labor Code 1101
Since freedom of speech in the private sector is not a defense, the lawsuit alleges that the firing of Damore was illegal under California Labor Code 1101 and the California Fair Employment and Housing Act (FEHA).
California Labor Code 1101 states:
No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
According to the San Francisco discrimination lawyers at Rukin Hyland, this section of the labor code is vague, but generally speaking, it is meant to protect an employee from activities they engage in outside of work. This means that he could not be fired for attending a rally, voting, or participating in an event while off the clock but is afforded less protection because the 10-page memo was posted to internal message boards and shared within the company.
California Fair Employment and Housing Act
The second main piece to his defense comes under FEHA, which states that employees are protected from discrimination and retaliation based on factors including age, race, religion, and gender. Damore alleges that Google set hiring quotas for females and minorities, which discriminates against qualified, white males.
Although it’s true that discrimination based on gender or race is illegal, when looking at the numbers, Damore’s position is ironic. First, Google’s overall workforce is 69% male and 56% white, with leadership at the company representing an even hirer number at 75% and 68% respectively. Second, Google was the subject of a US Department of Labor investigation last summer for claims that the company discriminates against women in pay and is currently facing another private lawsuit from three former female employees for this exact reason. While the logic behind Damore’s claim may be legitimate, a look at the numbers show that he is on the wrong side of the equation.
Although this lawsuit is still playing out in court, it seems that while you may not be fired or discriminated against directly for your beliefs, political or other, it can be an unwritten, contributing factor. Let’s be clear about James Damore; his counsel would have you believe that it is about his political affiliation when really it is cover for blatant sexism and misogyny. With that said, at-will employees can be terminated for no reason and private workers are entitled to little protection in the realm of free speech and violations of whatever the company decides is its policy. Nevertheless, this case will be interesting to follow as it will set the precedent for future discrimination cases to come.