NLRB GC Is Woke! (In more ways than one…)

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

February 23, 2018

The National Labor Relations Board’s Office of the General Counsel recently issued an Advice Memorandum and, although the employer and employee names are blanked out, it obviously is about James Damore and Google. Unless you have been in the wilds of Pago Pago for a year, you have heard the story of James Damore, the “Googler” (that’s what they call themselves at Google) who, in response to one too many company diversity training initiatives, prepared a memo to convey his thoughts and engage in open dialogue.

Damore’s memo mused about biological differences between men and women that might account for the uneven distribution of women in the engineering field (and at superior companies like Google). The memo began as feedback provided to the organizers of the diversity summit Damore had attended. Damore then decided to post the memo to the “coffeebeans” (a Google forum for discussion of diversity initiatives). Damore incorporated into his memo feedback he received along the way. He referred to Google as having a “monoculture” where an “ideological echo chamber” shamed contrary viewpoints into silence. Damore also included suggestions to correct these supposed biases. Once his memo was fully developed, he decided to post it on another company forum, “the skeptics.” Then, BOOM!

At least two female engineering applicants decided to withdraw from consideration for employment with Google. Many Googlers openly expressed consternation and complained about Damore’s views. A coworker sent Damore an email, which read in part, “You’re a misogynist and a terrible human being. I will keep hounding you until one of us is fired. F[***] you.”

The coworker was issued a final warning for the threat and Damore was fired for violating Google’s policies on harassment and discrimination. The talking points used by HR to convey the decision explained that the “offensive gender stereotypes” he had communicated were the basis for his termination. The talking points further stated, “I want to make clear that our decision is … not based in any way on the portions of your post that discuss Google’s programs or training, or how Google can improve its inclusion of differing political views. Those are important points.” The talking points stated, however, “Having a different political view is absolutely fine.  Advancing gender stereotypes is not.”

Was this protected concerted activity (PCA) under the National Labor Relations Act such that Damore’s discharge was an unfair labor practice? As readers of this blog know, during the Obama Administration, the NLRB took an expansive view of PCA and frequently found conduct that was insubordinate, disrespectful and even invective-filled to be within the wide span of latitude granted employees when voicing complaints about their employer for the “mutual aid and protection” of workers.

In this instance, the NLRB General Counsel concluded that no such protection existed. The GC reasoned that an employer’s “good faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws.” The GC also recognized, “Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions.” The GC concluded, “The Charging Party’s use of stereotypes based on purported biological differences between women and men should not be treated differently than the types of conduct the Board found to be unprotected in these cases.” Because Google stated that its actions only were based on the unprotected discriminatory statements, and not for expressing dissenting views on working condition, the GC found that there was no cognizable unfair labor practice charge.

Whatever one’s view of Google’s culture, Damore’s statements, or free speech (which private employers may suppress, subject to the NLRA’s rules), the GC’s statements about an employer’s right to interpret and enforce its anti-discrimination and anti-harassment policies is welcome news. What is remarkable, however, is that the GC had to rest the decision on legal precedent from eras when the NLRB was dominated by Republican (i.e. conservative) appointees. So, the GC issued a memorandum that is decidedly “woke” from a cultural perspective, but also “woke” in an “old school” way.