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Aug 11, 2017

Q&A: Free speech has limits in private employment (fired Google engineer)

Q&AHarassment & DiscriminationTermination & Resignation 

Question: There’s been a lot of talk in our workplace about the Google engineer who was fired for circulating an anti-diversity memo. What about free speech?

Answer: The constitutional right to free speech protects people from the government interfering with their speech, but it doesn’t insulate them from non-governmental consequences of that speech. So, government employees have free speech rights under the U.S. Constitution, but employees of private employers don’t have constitutional rights related to their employment. Private employers still have limits on their ability to discipline or fire workers for speaking their mind, though. Examples of employee speech that is protected in the private workplace include complaining about workplace safety; discussing or reporting discrimination (e.g., based on age, disability, military service, race, color, religion, national origin, sex, or other protected status); and (for non-management workers protected by the National Labor Relations Act) discussing wages, hours, and working conditions with coworkers or complaining about them to management. A more complicated example is when an employee with a sincerely held religious belief wants to proselytize to coworkers or customers. A private employer must consider whether this can be reasonably accommodated without an undue hardship to the company; at a minimum, the proselytizing employee must respect the wishes of those who object to hearing the employee’s message.
 
In the particular case of the Google engineer, it’s unlikely that his memo was legally protected. He raised general concerns of fairness related to gender (and race to a limited extent), but pointed to no specific discriminatory decisions that adversely affected his employment. Most of the memo focused on his beliefs that biological or evolutionary qualities prevent women from succeeding in leadership or technical jobs. From the standpoint of a private employer, that’s highly problematic, regardless of whether the employer is concerned with legal compliance or with the broader issue of workplace culture. If a person with these views could affect hiring or promotion decisions or even just work assignments, there will be a legal consequence (illegal employment discrimination) and a practical consequence (quashing the potential of a whole group of employees to thrive and contribute to the company’s success). We live in a complicated legal landscape, though, so before taking action in response to employees’ comments in the workplace or on social media, contact your Vigilant employment attorney.    

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