Did Google Break the Law By Firing Employee Who Questioned Diversity Groupthink?

Last week, a Google employee wrote a document entitled, “Google’s Ideological Echo Chamber,” and posted it to an internal discussion group promoted as a place for Google employees to advocate for internal changes.  (Full text including sources and hyperlinks present in original.)  I encourage you to read the full 3,000 word document, but I think a fair summary of the author’s position is as follows:

1. There have been studies that show that, statistically, there are some psychological traits that are more likely to occur in men than in women, and others more likely to occur in women than men.
2. These psychological differences may be at least partially the reason for the disparity between the number of men and women in the tech field, which has been dominated by men for decades.
3. Google’s corporate culture pretends to solicit diverse viewpoints from its employees, but a viewpoint that reflects the points above would be frowned upon.
4. Some of Google’s diversity programs are not the best approach, specifically including: a) training for women and minorities to the exclusion of white men, and b) a requirement that team composition include a quota of women and minorities regardless of whether the composition of the available qualified resources matches that quota are not.

The document was promptly leaked to the media by employees who were offended by its contents, and the author was subsequently fired for “perpetuating genders stereotypes” — perhaps proving point #3.

As a man who has spent much of his life working in tech, I have had occasion to notice that there aren’t as many women, e.g., in the Comp Sci classroom, on the IT helpdesk, or a part of the remote software development team, as there are men.  Frankly, I’m not sufficiently educated on the subject to have an opinion worth sharing as to why that is.  Sexism is certainly a real thing that still happens, although I suspect that the full explanation is a nuanced issue with more to it than any brief explanation can offer.  But, I am also troubled that the media reporting on the document in question immediately labeled it an “anti-diversity manifesto,” despite the author literally saying “I strongly believe in gender and racial diversity” as one of his key points, and I am troubled that Google would create a forum for people to express constructive criticism and then fire an employee for doing so in a way that doesn’t match Google’s (and Silicon Valley in general’s) political ideology.

Anyway, you came to this post because I do happen to be educated on the law.  Having made national attention, this guy now has lawyers knocking down his door to take the case because doing so is good publicity for them, win or lose.  Assuming he retains one of them, will he win in largely at-will California?

Some arguments he can make:

1. California prohibits companies from “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees.”  Cal. Lab. Code § 1101(b).  I think there’s no doubt that the subject matter of the memo was a “political issue.”  Google has a reasonable argument that they didn’t fire him for his position on this political issue, but for expressing it at the workplace when it violates their code of conduct.  But, the counterargument for that is that Google created this forum for its employees to speak freely, and then punished him for what he said.  If he can show that others have posted political opinions from a different viewpoint that have gone unpunished, it can very much be argued that Google at least tended to control political activities or affiliations.
2. California prohibits companies from retaliating against an employee who publishes information that he or she “has reasonable cause to believe that the information discloses a violation of state or federal statute,” so long as he does so to the government or to a supervisor.  Cal. Lab. Code § 1102.5(b).  Among many other things, the memo alleges that Google’s diversity programs “incentivize illegal discrimination,” which would violate both state and federal law if true.  Let’s assume he has reasonable cause to believe that.  Google will argue that: 1) his 3,000 word memo said many things, and he was not fired for the small comment about incentivizing discrimination, but rather for his hypothesis that biological gender differences, and not sexism, are responsible for the gender gap in tech.  They may also argue that publishing to this forum doesn’t count as disclosing to a supervisor.  I think Google would fail on the first argument, but prevail on the second.  He can reasonably argue that the other 2,997 words were background to his claim of discrimination, but cannot reasonably argue that submitting his feedback to the entire company, rather than to his boss, was the right way to provide that feedback.  But, I will note that the law provides that “the employer shall have the burden of proof.”  Perhaps not a risk worth taking.
3. Federal law allows employees to complain to each other about workplace conditions without fear of retribution, as long as it is a “concerted activity” for “mutual aid or protection.”  29 U.S.C. § 157.  What do these vague terms mean?  Well, the agency in charge of enforcing this statute, the National Labor Relations Board, takes a broad view: “Examples include: talking with one or more co-workers about your wages and benefits or other working conditions…”  This clearly applies to the situation, and it matters not whether the state is at-will or the employees are in a union.  There’s just one catch: “However, you can lose protection by saying or doing something egregiously offensive…”  Google will obviously argue that the employee’s memo was egregiously offensive, but given the civil tone of the memo, even if some (even many) people found the memo to be offensive, I don’t think a court will find it to be “egregiously” so.

In short, there is no open-and-shut case here.  But there is a case, and given that this former employee will have strong legal representation, I expect Google will rapidly settle the matter with a 6- or 7-figure payout to avoid having to publicly defend its diversity programs and its politically homogeneous work environment.