Google Memo Raises Questions About Limits Of Free Speech In The Workplace

Aug 8, 2017
Originally published on August 8, 2017 5:24 pm
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The software engineer who wrote a leaked memo titled "Google's Ideological Echo Chamber" is out of a job at Google. The company quickly fired him after the memo criticizing the company's diversity efforts went viral over the weekend. The engineer, James Damore, told The New York Times he's considering legal action. NPR's Yuki Noguchi reports, the controversy raises complex questions about what employees can say at work.

YUKI NOGUCHI, BYLINE: What a person can or cannot say in the workplace is governed by a thicket of laws. It is not the case that First Amendment free speech rights extend to private workplaces. Employers have broad leeway in setting rules, but there are exceptions. Labor laws protect workers' rights to share complaints about working conditions. At the same time, anti-discrimination laws require employers to protect against a hostile non-inclusive work environment. Damore's memo potentially touches on both.

It first circulated over an internal Google message board, citing biological reasons why women might be less suited to work in tech. Google responded saying his views propagated harmful gender stereotypes and violated the company's code of conduct. So which law prevails?

WILMA LIEBMAN: It's always a question of line drawing.

NOGUCHI: Wilma Liebman is a former Democratic member of the National Labor Relations Board. She says this case seems to pit labor law speech protections against anti-discrimination laws. Liebman says it's not legal for employers to require their workers to act respectfully or civilly toward one another because that is thought to limit disagreement and heated discussion among workers. Depending how it's worded, she says, Google's code of conduct might itself face problems, in which case, so would its justification to fire Damore.

LIEBMAN: So the question would be whether the particular rule under which he was discharged is considered to be unlawful under the National Labor Relations Act.

NOGUCHI: David Lopez looks at it another way. Lopez is former general counsel for the Equal Employment Opportunity Commission, which enforces anti-discrimination statutes. He says Google could have found itself in legal trouble if it had not fired Damore.

DAVID LOPEZ: I think the company has an obligation to make sure that it does not have a hostile work environment for its employees.

NOGUCHI: According to reports, Damore says he had filed a complaint with the labor board before he was fired. Damore did not respond to requests seeking comment. Lopez says Damore's own memo might undercut any discrimination claim he might bring.

LOPEZ: Generally, the company views his comments as discriminatory and really contrary, I think, to the values of Google.

NOGUCHI: Jeff Hirsch teaches employment law at the University of North Carolina. He notes that labor law protects conversations between workers. So it matters whether Damore was trying to line up supporters to challenge a workplace policy or was simply venting his own frustrations.

JEFF HIRSCH: Just because something is about workplace conditions, doesn't mean it's always going to be considered protected.

NOGUCHI: Hirsch says Google also has a strong case to make in its defense of its business.

HIRSCH: You can at least understand where they're coming from - that they're worried about this getting out of hand and getting shellacked in the press and not ultimately hurting their bottom line.

NOGUCHI: In a letter to employees, Google CEO Sundar Pichai referenced a difficult balancing act the company faces. Quote, "people must feel free to express dissent," he wrote, "however, parts of the memo crossed the line." Yuki Noguchi, NPR News, Washington. Transcript provided by NPR, Copyright NPR.