Over the last two weeks, the media have been filled with stories and commentary about Google’s decision to terminate the employment of engineer James Damore, who wrote a memorandum critical of the company’s culture. Damore characterized Google as an “echo chamber” in which employees who do not subscribe to the company’s views on diversity - and particularly gender diversity - were shamed and shunned.
In the wake of Damore’s termination, many have expressed opinions on the legality of Google’s decision. Some have characterized the termination as a violation of Damore’s right to free speech under the First Amendment. Others have suggested that Damore has no viable claims because his memorandum promoted stereotypical views of women. Both perspectives miss the mark and betray an ignorance of important legal principles relevant to employers.
The First Amendment provides that “Congress shall make no law … abridging the freedom of speech…”. By its very terms, the First Amendment prohibits the government, not private parties, from regulating speech. Google, as a non-governmental entity, is not subject to the First Amendment, and Damore will not succeed in asserting claims under the First Amendment against his former employer.
While Damore does not hold viable claims under the First Amendment, other commentators go too far in proclaiming that he has no chance of success in a suit against the company. California Labor Code section 1101 prohibits employers from “controlling or directing … the political activities or affiliations of employees.” The California Supreme Court has held that section 1101 “cannot be narrowly confined to partisan activity” and, instead, applies more broadly to “the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons." A court could interpret Damore’s memorandum to constitute the espousal of a cause and an attempt to promote the acceptance of that cause by colleagues at Google. Alternatively, section 7 of the National Labor Relations Act gives employees "the right … to engage in … concerted activities for the purpose of … mutual aid or protection." Damore’s memorandum could also be perceived as an attempt to rally support for a perspective that he felt would be beneficial to at least some of his co-workers.
Damore has not yet filed suit against Google, so it is far too early to predict the outcome of a legal dispute that has not even taken shape yet. Prudent employers, however, should recognize that employees hold certain freedoms of expression in the workplace, even though they do not qualify for protection under the First Amendment. The likelihood of controversy and dispute is particularly high if an employer takes action against an employee for expressing an opinion regarding important issues such as diversity and discrimination.