In this day in age, if an employee has something to say, they should be able to say it, right? Not exactly. One Google employee recently learned the hard way when he was fired after writing and circulating a memo where he criticized the company’s diversity efforts.
When the memo went public on August 5th, women and under-represented groups in tech criticized it and Google denounced it. But, after Google fired the engineer claiming he’d violated the company’s code of conduct, things changed. Some people appalled that someone could lose his job for expressing dissent, while some took to Twitter discussing the topic of free speech.
However, the First Amendment only protects the public’s right to free speech from government censorship, and not corporate censorship. One of the reasons that a private employer can censor speech is because the First Amendment does not cover private entities as it is limited only to government – federal, state and local.
Veronica Nannis, a partner with Joseph Greenwald & Laake focusing on qui tam litigation and whistleblower rights, sat down with IPWatchdog to discuss the question controversial topic of free speech in the workplace.
“Private employers are typically allowed to censor speech that occurs on the job. The First Amendment does not cover them,” she explained. “They are also allowed to censor speech or activity that discriminates against, creates a hostile work environment or harasses another employee. In that regard, and as with all our rights, our right to free speech generally ends where another person’s rights begin.”
An employee’s off-the-clock, private, political or religious activities are protected by both federal and state discrimination laws, but once political speech enters the work place, a private employer may legally discipline or fire an employee for such proselytizing in many cases, per Nannis. The gray areas in between are times when you need to seek consultation with an employment attorney in your state.
As it related to the Google incident, it was first reported that a memo authored by a Google employee, titled “Google’s Ideological Echo Chamber”, was being circulated among Google employees. Later that day, the memo was obtained by the media and made public. The memo’s author was identified in the press as a senior employee named James Damore. In the memo, Damore criticized the efforts of tech companies, Google included, to employ programs and hiring practices concentrating on diversity. Specifically, Damore was critical of tech company initiatives which had the goal of recruiting and employing female engineers.
“The crux of Damore’s critique was that the reason for the low number of women in the tech industry was not something that could be countered by policies promoting diversity through recruitment, education, or anti-discrimination measures,” explained Nannis. “Rather the reason there are so few women in the tech field is due to biological differences, including ‘higher agreeableness’ and more ‘neuroticism,’ that leave women less well-equipped to perform the work that tech jobs demand.
The media coverage sparked debate, some outrage, and a focus on Google’s culture, among other things. After days of the media firestorm, Google had terminated Damore’s employment. Google’s CEO, Sundar Pichai, stated, in an email published by the Washington Post, that although Google strongly supported the rights of its employees to express themselves and debate issues like those discussed in Damore’s memo, “To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK. It is contrary to our basic values and our Code of Conduct.” Pichai reiterated that point by stating that “portions of the memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.” For his part, Damore stated, as reported in the Financial Times, that he is “currently exploring all possible legal remedies.” Damore also stated that prior to his employment being terminated, he had filed a complaint with the National Labor Relations Board and that it’s illegal to retaliate against a NLRB charge.
According to Nannis, while whistleblowers are protected under various state and federal laws and retaliation laws can protect employees who file complaints or grievances, Google explained that the company could not have retaliated against Damore, because it was unaware of his NLRB complaint until news of the same was reported in the media after his dismissal.
“Anti-retaliation laws generally require the employer to have known about the complaint and to have fired the employee, at least in part, due to it,” she said.
So, how can employees protect themselves from incidents like Google’s in the future?
“Know your rights, be sensitive to others’ rights and know your employer’s rights too. Many states, including Maryland where I practice and California where Google is located, are at-will employment states,” she explained. “An at-will state means that, absent a contract, certain union protection, legal prohibition or public policy, an employer can demote or fire an employee for any reason, or no reason at all. If you live in an at-will state, your private employer does not need a reason to fire you. So, while an employee can speak at will, a private employer can fire at will as well.”
In addition, Nannis advises to look to see if there are any state laws protecting private employer censorship of speech for non-work related activities. California is one of a handful of states, including Colorado, New York and North Dakota, where there are laws protecting limited out-of-work speech.
She added, “If the Google employee had given an off-the-clock speech about his political views as may relate to IT and he had not mentioned Google by name, he would have had a stronger defense under California law, and Google might have had a harder time firing him for out-of-work activities. However, without the protection of one of these exceptions, an employee in an at-will state risks firing when he or she speaks out in a way that displeases their private employer.”