The news is currently full of stories about James Damore, a previously unknown engineer at Google who posted a ten-page memo voicing complaints about company diversity and inclusion initiatives to several coworkers. The memo was disseminated for several weeks throughout the company and ultimately released to the public. In the memo, Mr. Damore, a white man, says that he values diversity and he wants to promote it at Google – he even offers some proposals himself. However, the memo also states that total gender parity in his industry is a foolish goal, that “men and women biologically differ in many ways” and that “the distribution of preferences and abilities of men and women differ in part due to biological causes and that these differences may explain why we don’t see equal representation of women in tech and leadership.” He goes on to cite a number of allegedly biological differences between men and women that explain different employment outcomes at Google. Perhaps unsurprisingly, Google fired Mr. Damore earlier this week.
Mr. Damore, an at-will employee, has a First Amendment right to voice his opinion, and Google then has the right to fire him for any reason it chooses – as long as that reason is legal. Google’s position is that the termination was legal because Mr. Damore’s memo violated the Code of Conduct, which bans harassment and discrimination.
But is it that simple? Title VII of the Civil Rights Act of 1964 says that employers may not discriminate against employees on the basis of sex, gender, or race. To add “teeth” to the law, there is also an “anti-retaliation” provision, which says it is illegal for an employer to fire an employee “because he has opposed any practice” that violates Title VII. In Mr. Damore’s memo, he complains that “Google has created several discriminatory practices” in attempting to achieve diversity, including “[p]rograms, mentoring, and classes only for people with a certain gender or race.” He writes more than once that Google may be “incentiviz[ing] illegal discrimination.” One of Mr. Damore’s “suggestions” is to “[s]top restricting programs and classes to certain genders or races,” because “[t]hese discriminatory practices are both unfair and divisive.” It isn’t much of a stretch to interpret Mr. Damore’s memo as “opposing” what he believes are unlawfully discriminatory decisions at Google. And if Google fired Mr. Damore because of this position, it is a textbook case of retaliation for opposing discrimination.
Some journalists, citing “legal experts,” have written that Mr. Damore doesn’t have a case because he would not be able to actually prove that Google (which is largely comprised of white and male employees) discriminates against white men. Other journalists (and Mr. Damore’s many detractors) further say that Google was correct in terminating his employment because the content of his memo was factually or morally wrong. And this blog post is not intended in any way to endorse Mr. Damore’s views or the supposed science that underlies them. Critics of the memo may rightly point out that at least part of Mr. Damore’s memo is relying on harmful stereotypes or generalizations, or confuses biological predestination with social outcomes that are often shaped by unfair gender-based pressures. That is a long debate not appropriate for a blog post.
From a technical Title VII anti-retaliation standpoint, however, these journalists and critics are missing the point. Employers don’t get to fire an employee just because the employer claims that the complaint is “invalid.” If employers were given such discretion, the “anti-retaliation” protection would be essentially meaningless. Thus, legally speaking, the factual or moral “rightness” or “wrongness” of Mr. Damore’s position is irrelevant. Instead, Title VII protects activity opposing discriminatory conduct, “even when it is based on a mistaken good faith belief that Title VII has been violated.” So – from a Title VII liability perspective – it doesn’t matter whether Google’s diversity and inclusion measures actually violated Title VII. It doesn’t matter that Mr. Damore may be wrong to complain about “reverse discrimination” or sex discrimination in a company that is so overwhelmingly male. All that matters is that Mr. Damore believed that Google was breaking the law, complained about it, and Google fired him for voicing that complaint. If they want to avoid being entangled in a costly battle over civil rights retaliations, employers viewing from the sidelines would be wise to not follow Google’s lead the next time an employee raises a concern about discrimination.