Legal incentives and the Google Memo firing

I’ve got a new piece at USA Today on the background of why hostile-environment law creates incentives for a company like Google to discipline or fire an employee like James Damore, who wrote a now-famous memo on the the firm’s gender policies.

Now, just as two decades ago, many outsiders look at a firing-over-speech and say it’s just a private firm’s decision. No public policy or First Amendment implications, right?

And it’s true that sometimes an employer’s decision to fire would have been made even with no legal thumb on the scale. The disruption caused by an instance of speech, or co-workers’ or managers’ dislike for it, would have been enough. Other times legal considerations did make the difference. Hard to tell the two cases apart!

So as a way of evading responsibility system-wide it’s kind of brilliant. Those who write laws can blame private actors’ decisions. The private actors in turn can feel as if their hands were tied given the legal reality they might face.

And the piece concludes:

Google is currently being sued on sex discrimination claims, which means lawyerly caution would be at a zenith on whether to let its corporate culture be portrayed in a future courtroom as tolerant of sexist argumentation.

To sum up: don’t assume Google acted unusually. Under current legal incentives, what just happened counts as normal.

Full piece is here. Here’s the text of the memo, and here’s Conor Friedersdorf on how early coverage of the memo misrepresented its contents. The Jonathan Rauch 1997 New Republic piece I quote in my USA Today article is here; it quotes my 1997 book The Excuse Factory. And I also recommend this take by law professor Erica Goldberg at In a Crowded Theater.

More: Also see @mcclure111 in this ZeroBin post on Google’s legal posture.


  • Walter, you’re restating the obvious!

    • From the wave of positive reaction this piece (and its predecessor tweets) got, thanking me for explaining matters that had not been clear, I am not sure these points are as obvious to all readers as they might be to VMS.

  • Google is offended by science and biological realities. Ironically, some of the ideas about gender-based differences that Google seems to have found offensive are well-supported by social science research. Employers sued for “underrepresentation” of women in their workforce have successfully relied on expert testimony that men and women have differing interests and levels of risk-aversion that explain such underrepresentation (as opposed to it being caused by discrimination).

    For a prominent example of such a court ruling, see EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988) (upholding company’s defense that men and women had, on average, different interests and risk tolerance levels which explained women’s underrepresentation in positions such as risky commission sales jobs).

    Under the perverse logic of this firing (Google cited its Code of Conduct against “harassment,” intimidation, and discrimination), could a law firm be forced to fire an attorney who defended the appeals court decision in the Sears case? Under the theory that defending it created a “hostile work environment” for female lawyers?

    How can an employer defend itself against discrimination charges if it can’t even explain why women are underrepresented in its workforce without giving rise to a hostile environment allegation?

    Hostile-environment harassment law is patently overbroad and vague if it leads to such results, due to a “reasonable and widespread” belief that such punishment is required. (See the Second Circuit’s decision in Albert v. Carovano, holding that a “reasonable and widespread” belief that something must be done by a private entity to comply with the law converts that action into state action implicating the First Amendment).

    As UCLA law professor Eugene Volokh and others have noted, hostile-environment harassment law is at odds with the Constitution in mandating vague, overbroad, and viewpoint-discriminatory restrictions on speech.

    For an argument that Damore’s memo would not have been considered harassment by a court, see “Can Google be sued for firing engineer for his views about diversity?” at Liberty Unyielding, which cites relevant court rulings. That is probably correct.

    But even if a court would so hold (that it is not harassment), there seems to be a “reasonable and widespread” belief among some employment lawyers that it is required, judging by the New York Times’ quotation yesterday of unnamed employment-law experts (““Some argued that Damore’s views left Google little to no choice but to terminate his employment, because he had effectively created a hostile work environment for women.”). This difference of opinion is due to the fact that the concept of a hostile environment law is quite vague, as the Seventh Circuit noted in Pasqua v. Metropolitan Life Insurance Co. (1996).

    When the government enacts a vague “I know it when I see it” ban on speech like against a “hostile work environment,” it must take responsibility for the “reasonable and widespread,” if erroneous, decisions regulated entities make in response to it. Hostile environment harassment law should be struck down for its vast overbreadth and chilling effect on speech.

  • Thanks for your opinion piece. You address the issue head on and make a persuasive case. I just don’t know. If someone keeps a noose on their desk, that is speech. Should the company be coerced into firing that person? The 8th Cir. just came out with an opinion that reinstated an employee after a strike who had not been called back by the employee because of racist statements he made while picketing. The dissent wrote that no company should be forced to hire a racist.

    There are a lot of competing interests out there.

  • “By 1997, when I wrote my book, there were already dozens of reported cases in which liability claims cited anti-feminist statements, such as generalizations, stereotypes and loaded language about females.

    The speech of this sort that got employers into legal hot water was “frequently not at all obscene but often highly political and analytic in content.”

    Meanwhile, a search then found not a single case in which the reverse type of statement — generalizations, stereotypes, or loaded language unfriendly toward males — had been ruled to contribute to a hostile environment. ”

    You say it all right there Walter.

  • Just to add to the legal complexity, two lawyers argue that Google committed illegal retaliation in violation of Title VII of the Civil Rights Act by firing Damore after he complained that “Google has created several discriminatory practices.”

    1. Margot Cleveland, “James Damore Has Solid Grounds To Sue Google For Discrimination,” The Federalist, Aug. 9, 2017
    2. “Can Google be sued for firing engineer for his views about diversity?,” Liberty Unyielding, Aug. 8, 2017.

    At Forbes, Jeff John Roberts describes yet other state and federal law theories under which Damore would have a colorable claim.

  • Putting aside First Amendment issues, the Taft-Hartley Act protects employees from retaliation for engaging in discussing working conditions, employer policies, etc. Damore has a pending NLRB charge along these lines.

  • I very much doubt Google is a “hostile work environment” for women, as the law defines the term. Contrary to the silly, politically correct employment lawyers cited by the New York Times, who “argued that Damore’s views left Google little to no choice but to terminate his employment, because he had effectively created a hostile work environment for women.”

    Federal appeals courts routinely dismiss sexual harassment lawsuits when the claim of hostile work environment is based on only a handful of incidents in which sexism was expressed — even much worse sexism than anything in Damore’s memo.

    For example, consider the federal appeals court ruling in Hartsell v. Duplex Products, 123 F.3d 766 (4th Cir. 1997), where the court found no “hostile work environment” even though “Within two weeks of the beginning of Hartsell’s employment,” the manager told the plaintiff, ‘We’ve made every female in this office cry like a baby. We will do the same to you. Just give us time. We will find your weakness,'” and allegedly made several other offensive comments, such as, after seeing a buxom woman wearing a lowcut T-shirt, said, “why don’t we have sales assistants that look like that?,” and said, “Why don’t you go home and fetch your husband’s slippers like a good little wife, that’s exactly what my wife is going to do for me.”

    Hostile-environment harassment law may have incentivized Damore’s firing — since his memo might it slightly more likely that a court would find a hostile work environment under the “totality of circumstances” test — but it certainly did not do so, all by itself. Claiming it did is probably wishful thinking when the claim is made by politically-correct employment lawyers.

    The First Amendment problem with hostile-environment harassment law is that it aggregates the speech of many different speakers together in assessing whether an environment is hostile, meaning that no single comment need create a hostile environment all by itself to result in a violation. But Google is such a politically-correct environment to begin with that it is very unlikely that Damore’s mild memo triggered — or even came close to triggering — a hostile work environment.

  • I think Damore’s memo, which was surprisingly gentle when I actually read it, was a Bad Idea. The poor guy just didn’t have enough real word experience to know not to fight battles you can’t win, etc.

    However, the reactions were outrageous! Women were saying they felt physically unsafe because of this meek man’s meek memo. These employees who say that are all ticking timebombs within Google and Google should be very afraid of them.

    Also Google should find and fire the leakers. Publicly.