After causing an uproar last Saturday that has lasted into this week, James Damore, the Google engineer who wrote the now-infamous gender manifesto, has been fired. Almost immediately thereafter, reports started coming in that Damore will pursue legal action against Google, saying the company acted illegally.
And he might have a case, as the incident gets into murky legal territory with regard to political speech in the workplace. According to UCLA law professor and First Amendment expert Eugene Volokh, it could become the basis for a new legal precedent on the matter. “This is indeed an area in which there are few precedents, and if a case is filed and goes up on appeal, it could set a precedent,” he says.
The fundamental issue is whether the manifesto qualifies as political speech, and whether that speech is protected when it occurs on the job.
Contrary to what some conservatives say, Damore’s termination isn’t a breach of the First Amendment. The First Amendment only bars the government from infringing on speech, not private institutions such as Google, which are free to operate how they see fit—including firing employees for writing sexist screeds directed at their female co-workers. “There’s a very good argument that companies should have the right to regulate what their employees say, especially when someone is circulating something within the company that’s distracting and upsetting other employees,” Volokh says.
And since California is an at-will employment state, Google can fire Damore “at any time, for any cause — with or without notice,” according to FindLaw. “At-will basically means there aren’t any bars on the employee or employer terminating their relationship except as provided by other law,” says Shelby Clark, a 50-year-old business attorney in Boulder Creek, California. “The kicker is, there’s a fair amount of other law.” Specifically, California Labor Code sections 1101 and 1102, statutes that “specifically protect private employees’ political activity against retaliation from their employers,” Clark says.
In his paper “Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation,” Volokh points to Gay Law Students Assn. v. Pacific Tel. & Tel. Co., a 1979 California Supreme Court case that ruled employers cannot retaliate against employees for engaging in political activities, and that that protection isn’t limited to strictly partisan matters — it also includes broad social movements such as the right to support the gay rights movement without fear of repercussion.
Applied to the Google incident, however, it would be the right to tell your female employees about their inherent inferiority.
“Gender equality is certainly a broad social issue, and the statute protects people regardless of whether they believe in gender equality,” Volokh says.
The question, then, is whether those protections also apply to speech that occurs on the job — or in the case of the Google manifesto, a document that’s composed on company software, with the expressed purpose of sharing it with fellow employees.
There’s at least one precedent: The 1996 California case Cal. Teachers Ass’n. v. Governing Bd. of San Diego. It found that California state law restricts public employees from engaging in certain political activity while on the job. In it, San Diego teachers challenged a school district policy that forbade them to wear political buttons while conducting class, and an appellate court ruled in the district’s favor, saying they could prevent public employees from engaging in political speech on the job.
The ruling seems only to apply to government workers, however, leaving private sector employees free to engage in political speech at work, Volokh says. For Damore, that means criticizing a company strategy to increase the number of female workers.
The manifesto, which was aimed at changing Google’s diversity initiatives, can also be seen as an act of “concerted activity,” which is protected under the National Labor Relations Act. The act protects employees who try to bring a complaint to their employer’s attention and/or try to induce collective action.
Whatever happens, Damore has already won, to a certain extent, in the court of public opinion. In firing him, Google proved his point that it’s intolerant of conservative viewpoints such as his. Breitbart is already celebrating him as a free speech crusader, as is Wikileaks founder Julian Assange.
The situation epitomizes how fundamentally different the free speech debate is now compared to just decades prior. Free speech used to be about giving voice to the oppressed and fighting against inequality. Now it’s used to say women are too neurotic to write code.