Summary
The memo that resulted in the firing Monday of its author, a Google engineer, has already stirred up fiery debate about gender stereotyping, corporate diversity efforts and politics in the workplace. Now that the engineer has been terminated, social media has erupted with questions about free speech and the protections that are offered in the workplace.
But that discussion underscores a common misunderstanding among employees, say experts on labor law. The First Amendment protects people from adverse actions by the government, but it does not generally apply to actions by private employers.
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Even if Damore established that his memo amounted to “concerted activity,” said William B. Gould, a professor emeritus at Stanford Law School and a former chairman of the National Labor Relations Board, Google may still be able to assert that the speech crosses a line on stereotypes about women and that it was disruptive and could create a hostile work environment. He also noted that if Damore were able to prove that he was fired because he filed a charge with the NLRB, that would be a violation of the law regardless of the charge’s merits.
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Gould also said that there have been decisions in California and in a handful of other states that said that when employees pursue subject matter that is “in the interest of public policy, they are protected by common law,” he said, such as an employee who speaks out for believing an employer’s health and safety is not meeting government regulations.
“If he were speaking simply about the appropriateness of affirmative action, that might be a different matter,” he said, “but he appears to be speaking about women in a stereotypical, inflammatory way.”
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