James Damore and the Google diversity memo: Freedom of speech is limited in the American workplace — Quartz

James Damore and the Google diversity memo: Freedom of speech is limited in the American workplace — Quartz

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Your awesome employer can totally retaliate against you. (Reuters/Mike Blake)

Americans believe deeply in their right to speak freely and will proudly cite the First Amendment of the US Constitution to support it. There’s often a fundamental misunderstanding about what kind of speech is protected precisely, and Americans tend to believe they are more free than they really are.

In fact, employers in the US can fire almost anyone for almost any reason or no reason at all, as long as the termination is not discriminatory or retaliatory. This means that James Damore, the Googler fired for writing an internal anti-diversity memo claiming women aren’t biologically suited to engineering, probably will not have a viable wrongful-termination suit against his former employer.

Constitutional protections apply to government action, not private entities. The First Amendment provides that “Congress shall make no law…abridging the freedom of speech, or of the press.” In other words, the government can’t limit your speech. A company certainly can under most circumstances: Google and other companies can fire employees for saying things that displease the bosses, with limited exceptions.

Some retaliation is fine

Of course, Google’s termination of Damore does seem retaliatory since it follows the release and broad discussion of his memo. That’s not necessarily a problem for the company from a legal perspective.

Unless Damore can somehow prove that conservative male technologists are a protected class and that the company retaliated against him for exercising his right to speak freely under federal or state anti-discrimination law, Google likely would be OK. Considering that Google is also facing a US Department of Labor lawsuit for discrimination in the pay and hiring of female employees, it seems highly unlikely Damore will succeed in any legal action. His memo only supports the discrimination claims made by women, which led to the US investigation, and undermines Google’s arguments that it ensures equal treatment in the workplace.

The limited grounds for a successful suit

Damore told Bloomberg News that he’s exploring his legal options. His chances of winning are probably quite limited—or perhaps nonexistent—given the context of his termination.

Federal law prohibits terminating employees because of their race, gender, national origin, disability, religion, genetic information, or age (if above 40 years old). It also prohibits most employers from firing someone for being pregnant or having a medical condition related to pregnancy or childbirth.

Protected activity cannot be punished

Employers can’t legally retaliate against employees who speak up about discrimination, assist in a government investigation, or refuse to participate in or choose to expose a company’s illegal actions. A terminated employee who can prove one of those things will succeed in a wrongful-termination retaliation claim. Still, that’s not so easy. To advance such a claim, an employee must prove three findings:

  • He was engaged in a protected activity, such as opposing illegal discrimination or participating in an investigation.
  • He was punished in some way, like being terminated.
  • This punishment is the result of participation in a protected activity. The hardest part is showing the link between a protected action and the retaliation—here, it seems obvious Google retaliated and also obvious that Damore’s speech isn’t legally protected.

As the fact appear to be known, it seems highly unlikely Damore will succeed in a wrongful-termination suit. Yet he has already succeeded in making his employment and termination more widely known in the media than the plight of the women who say they were underpaid or never hired at Google. And now he has a job offer from Julian Assange.

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