Date: August 9, 2017
1A, a talk show heard nationally on National Public Radio, invited TELG's Dave Scher to participate in its recent one-hour segment on the limits — and consequences — of free speech in the workplace. The topic was inspired by the firing of Google engineer James Damore for a memo that criticized company efforts to help women to get ahead. The show was hosted by John Donvan, standing in for Joshua Johnson.
"I’m a civil rights lawyer and I represent whistleblowers, but I find myself on the side of Google in this case."
David L. Scher
What You Say Will Be Held Against You
(Introduction posted by 1A)
A Google engineer was fired this week over a memo he wrote about what he saw as the company’s “politically correct monoculture” and questioning policies aimed at hiring more women.
He argued that women were biologically less suited for certain jobs in tech, drawing outrage over both his opinions and over his firing.
Healthy organizations thrive on different opinions and perspectives — but what is out of bounds? Who gets to decide what words cross the line and when they should cost you your job?
(Excerpt of show transcribed by The Employment Law Group)
John Donvan (host): Let me go first to David Scher. As we’ve mentioned, this gentleman, James Damore, has decided now to try to sue Google for — I’m assuming the broad category would be some kind of unfair dismissal. Does he have legal protection in this situation?
David Scher: You know, it’s interesting: I’m a civil rights lawyer and I represent whistleblowers, but I find myself on the side of Google in this case. And I also find it interesting because I’ve heard many conservative media, you hear on the conservative side, support for this whistleblower — which I would have thought would be the opposite, that conservatives would be in support of the employer. So — and I think the reason, and I know you didn’t want to talk about the content [of Damore’s memo], but I think we have to —
Donvan: We can allude to it. We just didn’t want to spend a lot time debating whether women are as capable as men in the workplace, because that is a separate conversation.
Scher: Whether that statement is true or not really isn’t the point. It’s the point that he made that statement, and I think that’s where he crosses the line. I think employees are protected, from all kinds of protected conduct, making all kinds of statements in the workplace. The First Amendment is limited in the workplace, and there are a number of laws to protect an employee, but you can’t violate a company’s policy against discrimination. Even though Google has its own problems in this area, here [Damore] specifically comes out and says the problem is with — that gender disparity in the workplace is biology, not sexism. And not only is that statement false — and we don’t have to go there — but that statement is inherently discriminatory because it buckets a whole group of people.
Donvan: Under the law, you’re saying, that’s the case then?
Scher: Yes, under the law.
Donvan: So it’s not simply about how Google’s management might feel about him, or about that issue, but you’re saying under the law [Damore] crossed a line legally.
Scher: Yes, exactly. And Google didn’t have to fire him, but my view is that it was entitled to do so. Now we don’t have all the facts. There may be other factors playing into this, other complaints he made. He may have engaged in other protected conduct where he might have a claim. But based on the information that I have, and the facts that are before me, he’s not going to win.