Thursday, August 10, 2017

The Google Post and Its Aftermath


I have to wonder what's going on in the human resources department at Google recently. The company is the target of choice for a variety of lawsuits, and has now become something of a whipping boy for the press because of its large number of male employees.  Fairly or unfairly, the company is haled as an example of the professional ceiling women face in the STEM fields.

The irony of all this is that Google is one of the most liberal political business cultures in the country. It's so liberal, in fact, that people expressing politically conservative views feel isolated and targeted. At least that was the point of a memo written by a Google engineer that went viral this week. You can read the memo here, but the essence of it is that Google is not a diverse working environment, at least from an intellectual perspective, and that there is a definite firm monoculture that represses alternate worldviews. The author focuses particularly on the issue of women at Google, noting that perhaps biological differences factor into the suitability of women in some of these positions. If this is true, the author notes, then the way Google is going about trying to increase male-female diversity is problematic.

The piece is a difficult read, and I won't make any snide remarks here about engineers and communication styles.  The gentleman who wrote the memo could have phrased his points more tactfully. But there is nothing in this memo that is outside the academic discussion of the role gender plays in job selection and work assignments in this country. It is a thoughtful piece that takes into account recent social science research and notes that Google's culture actually restricts free discussion on the issues that are so important to it.

Unsurprisingly to those of us who follow the progressive world's responses to these kinds of challenges, the engineer author was fired by Google within days. As an employment lawyer, my first thought was "does this guy have a case against the company?" Certainly it appears that the action was unfair and unwarranted. But a company is not the state-it can police speech among its workforce to a much greater degree.

But that freedom is not unlimited. California specifically protects political speech by employees, and makes it illegal to terminate someone because of their political opinions or participation in political events. I'm not sure that this type of action would necessarily qualify as political, however. For one thing, making this political speech would conceivably insulate certain types of clearly objectionable opinions from an employer's reach. Think racist or sexist remarks along the lines of "barefoot and pregnant," or "shipped back to Africa."  So I think it's a stretch to call this protected political speech under California state law.

There's another avenue available to the employee, however. The National Labor Relations Board has greatly expanded the reach of Section 7 and 8 NLRA rights in the last few years. These Sections deal with so-called "protected, concerted activity", which is collaborative speech aimed at terms and conditions of employment of concern to the workforce at a company. It would be hard to imagine a more basic claim relating to the terms and conditions of employment than a challenge to a firm's corporate culture like the one here. I don't know whether the Board would take this case, since it runs against the progressive direction of the government's efforts over the last administration. But I think a direct challenge in the form of an unfair labor practice against Google has a legitimate chance of succeeding.

Here are some other reads on the issue:

http://www.investors.com/politics/editorials/did-google-just-choke-on-its-woke/

http://www.bostonglobe.com/business/2017/08/07/google-fires-employee-who-wrote-memo-about-women-technology-jobs/U8tL4oYksGg6U8XV6vSnFN/story.html?event=event25

https://www.theatlantic.com/politics/archive/2017/08/the-most-common-error-in-coverage-of-the-google-memo/536181/?utm_source=atlfb

Update.  Apparently the engineer's lawyers read the NLRB's recent actions the way I do.  And here is a relatively thorough analytical piece on the legal issues--note who holds what opinions regarding the inflammatory nature of the engineer's comments.

Another thorough analysis.  Note the inherent conflict between raising issues concerning how a company responds to discrimination, and the creation of a hostile work environment as a result of raising the issues.  I think that's the conundrum in which Google is now enmeshed.

Here's a good "what-if" letter from The Economist.

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