Free Speech Isn’t Speech Without Consequence

In recap, the firestorm of debate on the limits of free speech ignited last month at Google upon the firing of James Damore, a computer engineer who had worked at the company for four years. Damore was fired because he wrote a controversial 10-page manifesto entitled "Google’s Ideological Echo Chamber" [pdf] and then circulated the memo throughout the entire organization. In the memo, Damore accused the tech giant of reverse discrimination in conducting hiring and staffing decisions that he believes result in preferences for minorities and women, notably at the expense of more qualified candidates.

Damore's memo began:

“I value diversity and inclusion, am not denying that sexism exists, and don’t endorse using stereotypes. When addressing the gap in representation in the population, we need to look at population level differences in distributions. If we can’t have an honest discussion about this, then we can never truly solve the problem.”

As the memo become popularly characterized as an "anti-diversity screed," Google executives were less than pleased, as Damore was subsequently fired for, amongst other possible violations, perpetuating gender stereotypes in violation of the Code of Conduct governing Alphabet, the parent company of Google. Law and policy experts are now considering whether there is, or even should be, any violation of free speech in the company's code or within the broader context of the First Amendment.

THE MEMO

Damore’s memo argues that Google should eliminate programs that are designed for people of a particular gender or race, and that these programs actually serve to reverse discriminate, rather than to ameliorate the effects of past discrimination. He describes such programs as “mentoring or classes only for people with a certain gender or race, special treatment for diversity candidates, and hiring practices that effectively lower the bar for diversity candidates.”

Damore writes that “these practices are based on false assumptions generated by our biases and can actually increase race and gender tensions. We’re told by senior leadership that what we’re doing is both the morally and economically correct thing to do, but without evidence this is just veiled left ideology that can irreparably harm Google.”

His appeal was not only political, but offered critique of the social factors underlying Google's managerial strategy:

“Philosophically, I don’t think we should do arbitrary social engineering of tech just to make it appealing to equal portions of both men and women. For each of these changes, we need principled reasons for why it helps Google; that is, we should be optimizing for Google—with Google’s diversity being a component of that.”

Citing an example of this bias at work, Damore considered whether a wage gap truly exists between men and women: “women, on average, have more extraversion expressed as gregariousness rather than assertiveness,” he writes. He also stated that the higher levels of anxiety reported by women might explain the “lower number of women in high stress jobs.” Damore seems to suggest here that the wage gap is fully explainable based on biological differences between men and women, and that therefore our bias to want to correct what is seemingly wrong leads Google to create discriminatory programs that are, in fact, harmful to its own culture.

Damore also targeted the liberal ideology that he believes is pervasive at Google: “In highly progressive environments,” he writes, “conservatives are a minority that feel like they need to stay in the closet to avoid open hostility. We [Google] should empower those with different ideologies to be able to express themselves.”

Google execs were not amused, and he was fired soon after for “perpetuating gender stereotypes” in violation of the company's code of conduct. Damore has hired an attorney and is now exploring legal action.

LEGAL ACTION

At the outset, it should be noted that Damore has no plausible First Amendment claim because Google is a private corporation, and the First Amendment only provides protection for violations committed by state actors.

That being said, the National Relations Labor Board (NLRB) does protect a worker’s right to communicate with fellow employees about improving working conditions, and California law similarly prohibits the termination of an employee as retaliation for taking a political course of action.

As of today, Damore has filed a complaint with the National Labor Relations Board. However, in both cases, Damore’s claim gets a bit murky because parts of the memo will likely be found to be protected, while others are not. For example, suggestions made by Damore about how working conditions might be improved by cutting certain programs may be protected, while his discussions about the biological differences between men and women, and his theory that these distinctions cause women to seek out less competitive jobs could be viewed as harassment, which would not be protected. Of course, Google will argue that it was the unprotected reasons that led to his firing.

Another problem with Damore’s case is that he had an employment-at-will agreement with Google. Google therefore was free to terminate him at any time, and for any reason that is permissible under the law. If Google can simply show that Damore’s memo was in violation of its company policy, a lawful reason for termination, Google should prevail in any court. Damore therefore faces an uphill battle in proving there was an illegal motivation for his firing.

SPEECH WITH CONSEQUENCE

Regardless of what the law decides in this case, the question still remains on the issue of whether an employee like Damore should have some protection to speak freely at work. While some feel that Damore’s termination is justified, others believe that an employee ought to have some leeway to express opinions about problems in the workplace. They would argue that Google is attempting to silence a dissenter in this case, and that more speech is always better than no speech.

What many of these folks are forgetting, however, is that free speech does not equate to speech without consequence. While considering Damore’s right to speak freely, we cannot forget Google’s right to reevaluate its desire to associate with him - the key tenant of employment at will.

Damore’s case reminds us that we have the right to speak freely, but that we should take great care to carefully consider the consequences of our speech.

Word to the wise: try not to aggravate your employer if you want to stay employed.

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