The National Labor Relations Board should dismiss a Google software engineer’s complaint that he was illegally fired for circulating an anti-diversity memo, according to an official opinion from a staff attorney in the Division of Advice for the Board’s Office of the General Counsel.
You may recall that in August 2017, the media was abuzz with a story about the engineer losing his job because he circulated a ten-page memo around his workplace (and beyond), criticizing Google’s diversity initiative and women in tech. He cited no specific discriminatory decisions that affected him. Instead, the engineer shared his general beliefs that the low representation of women in technology and leadership was a function of “immutable biological differences between men and women,” including that women are more prone to “neuroticism.” As we previously reported, this employee’s speech likely wasn’t protected by the First Amendment, because employees of private employers don’t have constitutional rights related to their employment. The National Labor Relations Act (NLRA), on the other hand, does limit the ability of private employers to discipline or fire workers for speaking their mind about collective concerns of wages, hours, and working conditions.
Protected and Unprotected Statements
The Division of Advice concluded that the engineer’s memo contained both NLRA-protected statements and unprotected statements, but that he was terminated solely for his unprotected statements. The attorney who issued the opinion wrote: “Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions.” Indeed, Google had received complaints from female employees who said the memo was offensive and made them feel unsafe (Google Inc., NLRB Office of the General Counsel Advice Memorandum, Jan. 2016).
Tips For Employers: Whether an employee is engaged in a protected activity under the NLRA or any other law depends on the unique facts of each case. Before taking action in response to employees’ comments in the workplace or on social media, contact your Vigilant employment attorney.