NLRB: Google's firing of James Damore didn't violate federal labor law

James Damore is the former Google engineer who was fired last year after a memo he wrote about hiring practices at the company went viral. Today, Bloomberg reports the National Labor Relations Board has issued a 6-page memo stating that Damore’s firing was not a violation of federal labor law:

Google’s firing of an engineer over his controversial memo criticizing its diversity policies and “politically correct monoculture” didn’t violate U.S. labor law, a federal agency lawyer concluded.

Statements in James Damore’s 3,000-word memo “regarding biological differences between the sexes were so harmful, discriminatory, and disruptive” that they fell outside protections for collective action in the workplace, an associate general counsel for the National Labor Relations Board wrote in a six-page memo disclosed Thursday…

“Much of” Damore’s memo was probably protected under the law, the labor board’s attorney, Jayme Sophir, said in the Jan. 16 memo. But Sophir went on to find that Google discharged Damore only for his “discriminatory statements,” which aren’t shielded by labor law.

The actual NLRB memo is here. It highlights two statements from the memo which had to do with biological differences between men and women. If you guessed Damore’s mention of “neuroticism” was one of the things the NLRB objected to, come collect your prize:

  • Women are more prone to “neuroticism,” resulting in women experiencing higher anxiety and exhibiting lower tolerance for stress, which “may contribute to . . .
    the lower number of women in high stress jobs”;
  • Men demonstrate greater variance in IQ than women, such that there are more men at both the top and bottom of the distribution. Thus, posited, the Employer’s preference to hire from the “top of the curve” may result in a candidate pool with fewer females than those of “less-selective” tech companies.

The NLRB memo then concludes these statements constitute sexual harassment:

…statements about immutable traits linked to sex—such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding effort to cloak comments with “scientific” references and analysis, and notwithstanding “not all women” disclaimers. Moreover, those statements were likely to cause serious dissension and disruption in the workplace…Thus, while much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

What the memo doesn’t do is demonstrate that Damore’s statements are “scientific” rather than just scientific. The assumption seems to be that this was a cloak for his bad intent. Also, the cases the NLRB memo offers for comparison all seem to involve employees using derogatory language aimed at specific individuals, i.e. suggesting a co-worker is a closeted homosexual or, in another example, claiming someone is a member of the KKK:

For example, in Avondale Industries, the Board held that the employer lawfully discharged a union activist for insubordination based on her unfounded assertion that her foreman was a Klansman; the employer was justifiably concerned about the disruption her remark would cause in the workplace among her fellow African-American employees. In Advertiser Mfg. Co., the employer lawfully disciplined a shop steward who had made debasing and sexually abusive remarks to a female employee who had crossed a picket line months earlier. And, in Honda of America Mfg., the employer lawfully disciplined an employee for distributing a newsletter in which he directed one named employee to “come out of the closet” and used the phrase “bone us” to critique the employer’s bonus program.

I see a difference between calling an individual a Klansman and Damore’s memo which made generalized comments about men and women as a whole. If Damore had said ‘Engineer X is a poor worker because she’s a woman’ that would be different. But I’m not an NLRB lawyer (or a lawyer at all) so I’ll leave it to them to sort out.

Damore withdrew his complaint to the NLRB last month. He also filed a lawsuit against Google last month, alleging the company “ostracized, belittled, and punished” him (and others with differing views). Damore was joined in the lawsuit by one more former Google engineer named David Gudeman.