According to the New York Times, the software engineer who wrote an internal memo that questioned Google’s diversity efforts and was fired from the tech giant as a result, will likely sue the company.
The man called James Damore told the news outlet that he would be pursuing legal action, arguing he has the legal right to express his concerns about the terms and conditions of his working environment and to bring up any kind of potentially illegal behavior. Additionally, he explained that was the cornerstone of his controversial document.
As reported by the Times, Damore revealed he had submitted a complaint with the National Labor Relations Board. Nevertheless, any case would be quite complicated for him considering his identity as a white man and the nature of his complaint, given the fact that he says he faced retaliation for espousing conservative views.
Getting to this point, the big question in this Orwellian situation is quite simple: does Damore have a case? According to some legal scholars, the answer could be: maybe, since there are three particular laws in which the whole case could be determined.
The first one is the Violation of Federal Labor Law. As noted on Section 7 of the National Labor Relations Act, employers are basically barred from prohibiting its employees from organizing a union aimed at improving the workplace.
According to experts on the matter, while there’s no evidence that Damore was trying to organize a union, he could argue that circulating his document amounted to “concerted activities,” which are also protected under the law.
The reason why he could easily take this step is that the memo basically called for the inclusion of more diverse ideological viewpoint at the company. In addition, Damore could claim Google’s decision to fire him after filing the NLRB complaint amounts to illegal retaliation.
Another law that could determine this case is the Violation of Federal Civil Rights. As most lawyers know, Title VII of the 1964 Civil Rights Act protects employees from discrimination based on gender, color, race, and religion. This law has been typically invoked by groups who have faced systemic inequality in the workplace, including African-Americans and women.
According to experts, it is less common for white employees to raise Title VII, and the claims may fail in case the discrimination is part of a legitimate affirmative action plan. However, that doesn’t mean they are never successful. In fact, employers can’t fire someone just for being man or a white any more than they can for being black or female. Nevertheless, the experts assure Damore would have to show that gender or racial considerations motivated his firing.
The third law that could determine this controversial case is the Violation of California Law Against Restricting Political Activity. As most people know, speech by employees at private companies is not exactly protected by the First Amendment, and it’s also widely understood that workers don’t have full free speech rights on the job.
However, there are many states which have laws that forbid employers from restricting some political activity and speech. In fact, according to a 2012 paper by free speech scholar Eugene Volokh, the state of California not only has such a law, but it’s also among the strongest in the country. His paper gives examples of how political activities or even affiliations described in the law are broadly defined.
Experts assure this is exactly the most powerful point in this Orwellian situation if Damore decides to Sue Google, given the fact that his document speaks at length about how the tech giant alienates conservatives, and even calls on the company to reconsider how it defines diversity. Naturally, this position could be protected as political participation that is protected under this California law.
Google wants a chorus of matching voices, not diversity. For that, I hope James Damore sues & wins, coz freedom of expression goes both ways
— izzy (@israel_tan) 9 de agosto de 2017
In case Damore does decide to sue Google, experts believe it’s likely the case would settle instead of going to trial, given the fact that this controversial situation has proved a PR nightmare for the tech giant. First, it was the memo, which led liberals to accuse the company of institutional sexism, and then it was the authoritarian decision to fire Damore, which represented a clear assault on free speech.
Although it is almost a fact that Google would like to sweep this case under the rug as soon as possible, the company should not get away with an action that evidences the authoritarian manners of leftist policies.
This way, Damore would be getting into a legal battle not only against one of the most powerful companies in the history, but also against an ideology which cornerstone is the imposition of race and gender preferences to the detriment of free speech and meritocracy.
Let´s hope this case could set a historical precedent.