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.