Analyzing James Damore’s Employment-Related Claims against Google—Part Three

Published August 29th, 2017 -  - 08.29.173


Matthew Bodie is the Callis Family Professor at Saint Louis University School of Law. This post is the final installment in the three-part series. Read the first two parts here and here.

James Damore, the Google employee fired for his internal memo on diversity programs and “monocultures,” has raised claims of interference with protected concerted activity as well as retaliation for his complaints about Google’s allegedly discriminatory policies.  But Damore and his attorneys have charged Google with a third potential motive and attendant violation: firing him for his political and ideological views.  A claim oriented around political, ideological, or viewpoint discrimination may seem to fit most naturally with Damore’s memo, as it criticizes the ideological culture at Google and presses for more free-flowing discussion and debate, particularly around issues of workplace diversity.

Average citizens might expect the First Amendment to play a role in protecting Damore’s speech.  If he had distributed the memo in a public square, the Constitution would protect his speech against government interference.  But constitutional protections only restrict state action, which applies to public employers but not private ones.  The Constitution does not prohibit private employers from firing employees based on their political speech or ideological expressions.

California does have statutory protections for political activity by private employees.  Section 1101 of the California Labor Code forbids an employer from controlling or directing the political activities or affiliations of employees, while § 1102 prohibits coercion or influence that tries to force an employee into a particular course of political action or activity.  Although these individual provisions provide for misdemeanor criminal penalties, courts have interpreted § 1105 of the Code to provide employees with a private right of action.

Is Damore’s memo “political action or activity” for purposes of the statute?  The California statute covers more than just support for a particular candidate or canvassing on behalf of a political party.  The California Supreme Court has defined political activity and actions to include “the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.”  Gay Law Students Association v. Pacific Telephone and Telegraph Co., 595 P.2d 592, 610 (Cal. 1979).  The plaintiffs in Gay Law Students alleged that the employer discriminated “against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations.”  Id. at 611.  The Court held that “the struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as a political activity.”  Id. at 610.

Damore’s memo does not support a candidate or party, but it is clearly political and ideological.  The memo criticizes Google’s “ideological echo chamber” and “political bias.”  It draws a contrast between left and right archetypes and their attendant biases.  It singles out a particular issue—workplace diversity—and contends that Google improperly hews to one ideological approach over others.  In the “suggestions” section, Damore calls for the company to “stop alienating conservatives” and confront its own biases.  The political and ideological themes of the memo would seem to meet California courts’ broad interpretation of §§ 1101 and 1102.

Damore’s post-termination media outreach continues to hammer on this political theme.  In one interview, Damore said of his plight: “Hopefully it will show there has been a lot of political discrimination in the workplace and that needs to stop.”  His lawyers have put out a call to Google employees who have been “discriminated against at Google based on your political views” or “written up for ‘un-Googly conduct’ for refusing to comply with the political orthodoxy at the company.”  In fact, certain elements of Damore’s press interactions match up directly with the Court’s language in Gay Students Association.  Characterizing the cause of LGBTQ rights as political, the Court argued: “A principal barrier to homosexual equality is the common feeling that homosexuality is an affliction which the homosexual worker must conceal from his employer and his fellow workers. Consequently one important aspect of the struggle for equal rights is to induce homosexual individuals to ‘come out of the closet,’ acknowledge their sexual preferences, and to associate with others in working for equal rights.”  Id. at 610.  In a Business Insider interview, Damore used similar language: “Really, it’s like being gay in the 1950s. These conservatives have to stay in the closet and have to mask who they really are. And that’s a huge problem because there’s open discrimination against anyone who comes out of closet as a conservative.”

Google has argued that Damore’s memo crossed a line between ordinary political disclosure and offensive conduct by advancing harmful gender stereotypes.  California courts have recognized that employees are not “entitled to get away with malicious words or disruptive or offensive conduct in the workplace by calling it political.”  Nava v. Safeway Inc., No. F063775, (Cal. Ct. App. July 31, 2013).  However, it’s hard to know what standards a California court would apply for offensive behavior.  The First Amendment gives wide berth to political expression; even the most societally noxious views are given protection so long as they pose no imminent danger or threat of political violence.  But should a workplace have to retain workers with such extreme views?  Putting aside Damore’s memo for the moment, as its offensiveness is hotly contested—what about Nazis?  Would California courts expect tolerance if an employee professed political support for the Nazi party and its hatred of minority groups?

Certain workplace protections have addressed this concern by drawing a line between workplace conduct and outside affairs.  For public workplaces, the Supreme Court has allowed employers to terminate or discipline workers for expressions made in the course of their official duties. Garcetti v. Ceballos, 547 U.S. 410 (2006).  The Restatement of Employment Law § 7.08 protects employee autonomy for off-duty activities and political beliefs, but it would not protect employee workplace conduct such as Damore’s memo.   The idea is to prevent employers from leveraging their workplace power to influence their employee’s personal religious, political, and cultural beliefs and practices.  The California political activity statutes appear to have had a similar motivation: “recognizing that employers could misuse their economic power to interfere with the political activities of their employees.”  Gay Law Students, 595 P.2d. at 609.  But employers also have an interest in their ideological profiles as conveyed to employees, consumers, and the public.  In Damore’s case, Google—which is embroiled in gender pay-disparity investigation—had strong pragmatic, as well as moral, interests in avoiding association with arguably offensive and discriminatory expression.

The controversy over Damore’s memo provides a vivid example of the many tensions between workplace and society.  For much of the last century, mainstream American businesses have preferred to avoid politics, following the sentiment—attributed to Michael Jordan—that “Republicans buy shoes, too.”  But now politics is coming to the workplace.  These are difficult waters for both employees and employers to navigate.  Perhaps Damore’s story—in which a conservative employee endeavors to assert his workplace rights against his comparatively progressive employer—will offer a chance for both sides to better understand the need for tradeoffs when we as individuals work together in groups to pursue common ends.

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