The Google engineer fired after posting a 10-page screed railing against the company’s diversity initiatives tells he plans to sue. Legal experts say he might have a case.
“Yes he has a leg to stand on,” says Eve Wagner, a partner at the Los Angeles law firm Sauer & Wagner who specializes in employment law. “I don’t know if he’ll keep standing, but he has a leg to get through the courtroom door.”
Over the weekend, James Damore’s memo, originally circulated internally at Google, was published by tech news site Gizmodo, fueling a controversy that culminated in his dismissal. Google confirmed Monday night that Damore had left the company after its CEO said he had violated its Code of Conduct “by advancing harmful gender stereotypes in our workplace.” Damore tells WIRED he was fired for “perpetuating gender stereotypes.”
California is an “at-will” state, meaning Google can dismiss an employee for almost any reason. However, Damore says that before he was fired, he filed a complaint, formally known as a charge, with the National Labor Relations Board, which administers some aspects of federal labor law. Under the National Labor Relations Act, it’s against federal law to fire someone in retaliation for filing a complaint to the board, lawyers say.
The labor-relations law usually applies to union organizing, says Wagner. But over the years the act has been more broadly interpreted to protect employees who discuss their working conditions with each other. That might include Damore’s memo, Wagner says.
Damore says he also plans to invoke a California law that bars employers from retaliating against workers who complain about illegal working conditions. He doesn’t have to prove that his working conditions were illegal, Wagner says. Instead, she says Damore’s lawyer might argue that his memo was protected under California law, because it related to allegedly unequal treatment of employees.
Wagner says that under California law, the burden of proof may fall on Google to show that it didn’t retaliate against Damore for posting the memo complaining about discrimination, rather than on Damore to prove that he was retaliated against. But Jennifer A. Reisch, a legal director at Equal Rights Advocates, says it’s an open question whether Damore’s memo will be protected under the law simply because it involved alleged discrimination.
A person at Google familiar with the matter said Damore’s dismissal could not have been retaliation for his NLRB complaint because the company only learned of the complaint after Damore was fired.
Rishi Bhandari, a partner at New York law firm Mandel Bhandari who previously practiced in California, says Google’s position will likely be that it fired Damore because his memo antagonized coworkers and contained factual inaccuracies, making it unprofessional. If Google had previously warned Damore about Code of Conduct or performance issues, that would bolster the company’s defense, Bhandari says. He says the company could even cite reasons for dismissing Damore that it discovers after his firing; such evidence could limit any award to Damore if a court finds that Google did retaliate against him.