The Google software engineer fired for writing an internal memo critical of diversity hiring policies at the company faces an uphill battle legally challenging his termination, but he could succeed in prolonging the controversy, potentially driving the tech firm to settle, legal experts said on Tuesday. James Damore told Reuters in an email on Monday that he had been fired by Google, a unit of Alphabet Inc, for “perpetuating gender stereotypes” in his 10-page memo, which asserted Google had “a left bias” hostile to conservative viewpoints and argued that the lack of representation of women in leadership roles in the tech industry was due to biological differences rather than discrimination.
Damore said in the email he was exploring his legal options. Neither Damore nor Mountain View, California-based Google responded to a request for comment for this article. Damore’s memo and his firing have quickly become flashpoints in the culture wars with right-leaning writers and websites embracing Damore’s stand against “political correctness” and those on the left decrying his “sexist” arguments. Employment lawyers mostly said Damore’s potential legal case over his firing was weak though, with some noting Google would have faced potential lawsuits if it had not acted against him.
“If an employer is met with someone making statements that unabashedly stereotype based on gender and the employer doesn’t respond, the employer may be sued by others who say that discriminatory conduct creates a harassing atmosphere,” said Philadelphia-based labor lawyer Jonathan Segal of Duane Morris. Discrimination lawsuits might not directly target a Google decision not to fire Damore but could cite it as evidence of a “hostile work environment,” said Segal.
William Gould, a Stanford law professor and former National Labor Relations Board chairman, said Google had a strong argument its firing of Damore was justified on the grounds that his memo raised questions about whether he could fairly assess the work of female colleagues.
Gould said Damore would have a tough time arguing his firing violated his right to free speech. Private employers can largely fire workers for any reason. Some states including California have laws protecting political speech by employees but that protection would probably not apply to an internal memo focused on Google’s own policies, Gould said. In his email to Reuters on Monday, Damore suggested Google may have retaliated against him for filing a complaint with the National Labor Relations Board shortly before he was fired. The complaint claimed Google management was trying to silence his views. But several employment lawyers said this claim would likely fail because his memo would not be considered a “concerted activity” among Google employees protected by the National Labor Relations Act, just griping by Damore alone.
Michael Willemin, a plaintiff’s lawyer with employment firm Wigdor, also said Damore would have a hard time bringing a retaliation claim based on the idea that his memo constituted a complaint about discrimination against men. Willemin noted the memo contained no specific accusation of unlawful conduct.Damore may not need to prevail in a legal proceeding to win, however. Though his memo received widespread criticism for its perceived sexism, it also drew a great deal of support, especially from the political right.
Such voices would likely increase during a legal case, and Jeffrey Hirsch, a professor at the University of North Carolina School of Law, said the controversy could lead Google to settle any legal action brought by Damore. “My guess is Google would rather not have people talking about this,” he said. But Hirsch also said it was possible a quick settlement was less Damore’s goal than publicity for his point of view.
“It takes a certain personality to stick your neck out like that – to write a memo and send it to the workforce,” said Hirsch. “That same type of person might also embrace the martyr role.”