Some thoughts on James Damore and the National Labor Relations Board

At some point, the NLRB will look back on the Advice Memorandum  prepared by one of its regional attorneys concerning the Google/James Damore charge and ask itself how such a poorly thought out opinion letter made it into the Board's jurisprudence. The Memorandum has been excoriated in a number of different places. I don't mean to rehash those criticisms here.

Some background first. Damore was a Google employee who, in response to diversity training at the company and at the request of a company HR manager, drafted a memo that raised a basic question concerning the effectiveness of Google's diversity initiatives with respect to women. Damore initially circulated the first draft of the document with the HR management team through a feedback form it provided. The memorandum was eventually published on a companywide discussion group called "coffee beans", specifically designed to discuss Google's diversity and inclusion programs.

Damore's thesis was straightforward and supported by well-established research: if there are significant differences based on gender between how men and women operate in an environment like Google, then Google's diversity efforts, which focus on gender-based discrimination, will not solve the problem. Damore's memorandum specifically noted studies that demonstrated uncontroversial facts, including that: a)  women are more prone to neuroticism (which meant experiencing higher anxiety and lower tolerance for stress), and b) that men demonstrate greater variance in IQ such that there are more men at both the top and bottom of the distribution, which might lead to an employer choosing more men than women when it hires from the "top of the curve".

Damore was careful to note that these tendencies were generalized across large populations and that these differences did not necessarily apply to all individuals.  Eventually, as the memorandum gained more circulation within Google, it became the basis for Damore's termination. The company noted that its decision to fire him was based "solely on the part of your post that generalizes and advances stereotypes about women versus men. It is not based in any way on the portions of your post that discuss Google's programs or trainings, or how Google can improve its inclusion of different political views."

Notwithstanding the clear nature of Damore's memo as protected concerted activity, the Board attorney found that the company was justified in firing him because his memo contained language that the Board attorney considered to be stereotypical "based on purported biological differences between women and men." The board attorney noted that this constituted sexual-harassment notwithstanding the use of scientific references and analysis (the Memorandum actually puts quotation marks around the word "scientific").

The Memorandum makes no attempt to establish that these two items out of a memo drafted at the invitation of Google human resource managers constituted sexual-harassment under any type of legal standard. In fact, there is no discussion in the Memorandum of what type of sexual harassment Damore's memo contains. Most importantly, there is no assessment about whether the offending language was objectively hostile, measured against either Ninth Circuit or Supreme Court precedent.

Even more troubling is the analytical failure of the Memorandum. A company that solicits discussion about its diversity programs effectively opens the door to reasonable discussions about gender-specific traits and choices (again, this is not particularly controversial in the scientific literature). Moreover, the language Damore used in his memorandum is not even close to the inflammatory language cited by the Board attorney as unprotected because of its pernicious nature. Damore does not refer to supervisors as members of the Ku Klux Klan, he does not direct sexually abusive remarks to individual employees, or identify named employees as homosexuals. To be sure, there were individuals at Google who were offended by Damore's analysis. But this is not enough under modern sexual-harassment law. The remarks must be objectively hostile, something that a scientific analysis almost certainly is not. Moreover, as the Board has noted in numerous other cases, a certain amount of give-and-take discussion in the workplace, and especially the use of rough language by employees, is part of any workplace culture, and outside of extreme circumstances insufficient to exempt bad language from the protections of the National Labor Relations Act.

In short, the Advice Memorandum is so analytically and factually flawed that it screams "predetermined outcome." No doubt the author was offended by Damore's assertions and wanted to reward Google for punishing him for them. But this document not only undermines the Board's credibility in labor analysis, it potentially opens the door to a lot more problems down the road.

UPDATE:  More research supporting Damore's position here.

UPDATE #2:  Anti-white/male training at Google.