The Google memo: Who is in the right?

Google
Girard Dorney

By

written on August 10, 2017

A Google engineer, dismayed by the company’s pro-diversity policies, penned a 10 page memo outlining detailed and controversial criticisms. It leaked, and he was fired. Was he doing something harmful, or righteous? And, if he were in Australia, would his sacking be ruled an unfair dismissal?

Since HRM originally reported on the memo, its author, Google engineer James Damore, based at Google’s headquarters in Silicon Valley, California, has filed a complaint with the US National Labor Relations Board and has claimed that the tech giant smeared him.

“It was only after it got viral that upper management started shaming me… it would be career suicide for any executives or directors to support me,” he told Bloomberg.

The memo was originally published on Google’s internal social media and was then leaked to the public. The memo has a lot in it, but the most problematic assertions have proven to be those centered around the idea that biological and cultural differences between men (particularly their “higher drive for status”) and women (including the gender’s propensity towards “neuroticism” and “agreeableness”) play a big role in the pay gap and lack of female representation in tech.

The reason given for his firing by Sundar Pichai, CEO of Google, was that portions of Damore’s 10-page memo “violate our code of conduct and cross the line by advancing harmful gender stereotypes.”

Opinions on the story have been polarised. Some say Damore has been unfairly punished, while others think the decision was just. To further discussion, HRM asked a legal expert for his opinion on whether Damore has an unfair dismissal case, and an industry professor on what she thinks of the story’s ethical considerations.

Where does the law stand?

There’s differences of opinion as to whether Damore’s case has a chance of success. The US has less labour protections than Australia, and their legal principle of “at-will employment” means any employee can be dismissed for any reason, without warning (with only a few exceptions). Damore would have to find robust evidence of company wrongdoing to win at trial.

But what if he was in Australia, would he have a better chance?

HRM asked Aaron Goonrey, partner at Lander & Rogers’ Workplace Relations & Safety practice, about what Damore’s unfair dismissal case would look like if it were taking place here. He explained the Google employee could potentially try to claim:

  1. That his dismissal constituted unlawful discrimination;
  2. or adverse action because he exercised a workplace right.

One of the difficulties Damore would have for each of these claims would be establishing that the intent behind his memo aligned with either. Unlawful discrimination would require him to prove that Google dismissed him because of, for example, his race or gender.

He’d have similar difficulties If he wanted to claim he was exercising a workplace right. As Goonrey wrote for HRM recently, “Cases on the subject also suggest that a complaint or inquiry has to be about something that would have a direct and tangible impact on your employment.”

“It’s not evident why he wrote it. I would ask, why were you complaining, how does it affect you?” Goonrey says. “If it was his intent to improve Google, that’s not at all clear by the way in which he did it.”

What’s more, Google’s defence would be quite strong, Goonrey says. “Google’s case would be that Damore unreasonably, and maybe unnecessarily, maligned the company and its reputation. The more appropriate way to raise these complaints would be via his manager, or HR, as opposed to a ‘Jerry Maguire mission statement.’”

For organisations looking to prepare and protect themselves for a similar occurrence, robust code of conduct policies are a must. Employee rights to express opinions about the company shouldn’t be discouraged by these policies, rather they should be tempered, recommends Goonrey.

What about the ethics?

“It’s about free speech, as far as I’m concerned,” says Petrina Coventry, Industry Professor at Adelaide University.

Allowing employees to express their opinions on the direction of the company, and the effectiveness of its programs, is widely seen as a good thing. But, from an ethical perspective, free speech is often weighed against Mills’ harm principle. Is the benefit of Damore’s right to express his opinions in the manner that he did outweighed by the damage it causes to his colleagues and Google’s reputation?

Part of the problem for Google, Coventry argues, is to some extent they set themselves up for reputational harm. “I really object to large multinationals who are held on a pedestal for being best-in-class on issues, such as diversity, despite poor statistics,” she says.

Since 2014, the first year Google released a diversity report, the company has been making efforts to be seen as actively moving towards a diverse and inclusive working environment. Just last month the Mercury News had a story about a Google engineer and instructor in its new diversity program. In the meantime, their most recent diversity report showed that 75 per cent of its leaders globally are men, just two per cent of its employees in the US are black, and only 20 per cent of its tech employees are women.

Companies like Google tie their market value to the perception of their brand, and so spend money getting their programs great publicity. Their efforts backfire because when something goes wrong “they fall from a great height,” Coventry says.

And what about Damore’s decisions? Was the company’s social media page the right forum for him to express his views? Coventry argues that for him, as someone who works in a tech company, it might have been the most natural venue. But, she thinks, “his choice of words have let him down”.

Though sections of Damore’s memo offer positive suggestions for ways to increase diversity within Google, his decision to stress the biological differences between the genders, and to suggest Google’s diversity programs are both “extreme” and “authoritarian” (despite the fact the company is still predominantly male and white, a fact he doesn’t mention) made it easy to view him as a bigot.

“This is the path that is dangerous, people react badly to words that incense them. Using ideological words can cause a backlash,” Coventry says. She ties this to wider social issues, where alternative views from both the left and the right often cause a furore designed to silence any divergence from mainstream views.

So from a legal perspective Damore seems unlikely to gain much traction, but what about from an ethical one?

“Does he have a case where the punishment doesn’t fit the crime? Yes. He could argue that they have damaged his reputation by overreacting to this memo,” says Coventry.

What do you think? Let us know in the comments.

If you want learn more about unconscious bias and how to overcome it, why not check out AHRI’s custom learning course, and its managing unconscious bias toolkit.

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Comment

13 thoughts on “The Google memo: Who is in the right?

  1. It’s not safe to have opinions that are not politically correct in almost any forum nowadays. I have learnt the hard way to apply the 24 hour rule and on most occasions whatever I had penned 24 hours before went into the bin! Who really cares about his (or my opinions any way?

  2. Political correctness gone mad. It’s sad that people cannot question the popular or ‘safe’ opinion without being crucified. The memo is fair and actively seeks out ways to improve diversity – it merely points out that a) sex (nature) and gender (nurture) differences exist (which they do, particularly at the population level he mentioned), and b) ‘positive discrimination’ against one demographic in favour of others breeds resentment and has significant flow-on effects (some positive, some negative).

    Any potential harm/hurt feelings caused by this memo pales in significance compared to the damage done to our freedom of speech and common law labour policies caused by this – let alone the damage done to this man’s career and reputation.

  3. As with all these PC uproars nowhere are facts considered. Neither are the stats of gender in tech degrees discussed. If there are more male techs graduating then perhaps this reflects a gender preference which could perhaps coincide with the Damore proposition. Equally where are the facts to support such a proposition anyway? If they exist then a fact is a fact, or it used to be until the loony left took over sensible thought.

  4. Most of us would agree that freedom of speech has a primary importance in modern democracy. There will be folks out there much better versed than me that could write an entire treatise on what this means for us. In simple terms, we like to think that we live in a world where we can voice an opinion without fear of retribution and that what we say will be considered even if that opinion pushes against the tide. In principle, I think most people would agree; however, when opinion is dressed up as fact and couched in pseudo intellectual terms, referring to studies that may or may not exist, this changes the nature of what is being said and its intent. This Google Engineer doesn’t just say ‘this is my opinion’ he tries to educate to the contrary of Google Policy and Corporate Values – style, language and format matter here. He would have been better to speak to their Executives, or to his boss (I imagine they have grievance procedures) – it is nativity and stupidity to think that he can write a piece like that, in such a high-profile organization and expect it not to be circulated and not suffer the wrath of the organization. I’m not a fan of ‘political correctness’ but this steps outside those bounds. To ‘actively work’ against company policy, to undermine company principles, to insult colleagues with your own biases and propagate your thoughts as truth in a public sphere can only end in tears.

  5. In my opinion Google missed an opportunity to explain their HR policies and unfairly dismissed a good employee.

    Why unfairly? Most definitions of harassment require the behaviour concerned to be repeated. That is certainly so in Australia. This provides the organisation to make the employee aware the behaviour is unacceptable on the first occasion and provide guidance and counselling to prevent it happening again. Both the employer and employee benefit from this.

    Most companies value employee contributions on policy and direction. Many contributions are unhelpful, but some are very helpful. You cannot hope to get useful comments without attracting a lot of comments that are not useful.

    Google promotes itself as an equal opportunity employer, yet only 35% of its programmers are female. That indicates there is an inherent problem with programming that makes it less attractive to women, or there is systematic bias in Google’s selection process. As a manager I would like to believe I have instituted a selection system that is free of sexist bias, which leaves the other alternative. Punishing an employee for stating this possibility is counterproductive and does nothing toward solving the problem.

    Google missed an opportunity to explain its HR policies by firing the messenger instead of dealing with the message. Even worse, no Google employee is likely to help the company by exploring HR issues in the future. Most companies spend a lot of time and effort promoting an environment where employees contribute ideas. Google has just shut down that process. It can only suffer the consequences.

  6. I have a couple of comments related to something that the comments in the article do not consider–1) Damore’s ‘opinion’ was sent to 40,000 employees! I think the issue of ‘free speech’ in the workplace has limitations. To share your opinion with a ‘few’ employees is one thing, however, to use the workforce as a court for ‘public opinion’ seem to be outside of the scope of the employee-employer relationship given that it was Google workforce vs. a few Facebook or Linked In people. Relatedly, employers in the US have the right to establish the policies and procedures it feels will best serve the business (within the scope of labor law). This is separate and apart from ‘at-will employment’ doctrines. Therefore, if an employee doesn’t like a policy, program or practice… they are free to find another company that suits their beliefs or preferences. Just as an employer has the right to terminate, employees have the right to accept or reject (e.g., resign) from the company.

    2. That the CEO reasoned Damore’s act was a violation of Google’s Code of Conduct, is also within the purview of a US employer to interpret and enforce….as long as enforcement is even-handed, consistent and fair. This means that employers are free to determine what actions are compliant or violations of behavioral based policies. For instance, if Google view the email addresses of its employees as company property, Google could have argued that Damore misused company property.

    3. Freedom of speech speaks to one’s right to have an opinion and to openly discuss. This however becomes limited when an employee enters into an employment arrangement (e.g., company values, communication norms or standards within a company). This may constrict what employees can or cannot say (especially if the opinion expressed involves a view that is perceived as discriminatory). For example, what if Damore had been in a leadership position? Any actions or words uttered in the workplace by a leader (in the US) is interpreted as representing the company. Now, what if ‘as a leader’ he shared this opinion with 40,000 employees….would it be ok? If we answer no it isn’t for a leader; then why would a different standard for employees (in principle) be acceptable?

    This issue is bigger than Google… the technology industry has to address its gender bias issue. Mr. Damore, although entitled to his opinion, provided evidence of the mindset that is at the heart of the issue. It’s fine to have an opinion, but it’s dangerous to assume that your ‘opinion’ is right or that your opinion fits every scenario. And while Mr. Damore is sputtering his opinion about women in technology, he might take the time to correct is profile on the Harvard website which indicates he has a Ph.D. when it should state that he has a Masters degree!

  7. What is as “interesting” as the article itself is the comments made in this forum. It seems to me, from my reading of the comments so far, there is a clear gender divide of opinion. This should not be a “PC” argument, it should be a gender equity issue discussion.

    1. Definitely agree with you. Objecting to a person who is articulating his belief that a company should sideline most women as less capable than all men in particular fields is not “Political Correctness”.

      “Political Correctness” is a term that has been created as a short cut way for people objecting to the business reality that they are no longer supposed to make judgements based on gender, sexuality, race, disability et al.

      It is interesting to swap “Political Correctness Gone Mad” with “Treating People with Respect Gone Mad”, to see how that reads.

  8. I have not read Damore’s memo so can’t comment on his specific arguments, but I personally have many concerns about diversity programs which I’ve raised often since they became the “cool” business trend.

    I’m a female that has spend many years working in industries that are traditionally male dominated. I regularly seen men get roles where a female applicant was the stronger candidate (and as often predicted, the male who got the role made a mess of things), but I’ve also seen roles given to a female applicant when a male applicant had been the much stronger candidate.

    I’m all for equality and diversity but not when this is at the expense of “the right person for the role”, which is exactly my problem with diversity programs – quotas, etc create an environment where it is no longer about best for the role, and mostly they only serve to create reverse discrimination. I’d be just as annoyed being male and thinking that the only reason that I missed out was because they had to hire a female, as I would be being a female and thinking that this was the only reason I got the job. It also does not help in gaining respect in your role if people think the only reason you got the role was to meet gender/race quotas (been there before).

    We need to stop focussing on arbitrary numbers and on labelling everything, and start teaching people that these factors should not be even considered when recruiting. All we should be considering is best for the role. In some rare cases, gender/race may be important, but for the most part these should not be a consideration either for or against candidates.

  9. Its acutally humours to see this debate on a U.S company. Many Australian workers who are employed by large organisations suffer this as well going against the norms and the ‘right’ opinions / standing up against discrimination or expressing concerns on compliance in their work places do end in being excluded and being harshly treated. Its more odd that people see the case of Google as an expection to a general rule of accepting free speech, when many companies engage in such behaviour.
    Even with the rights and protections we have here the onus is still on the employee to prove any claim and employers here can get away with it. This story and this debate really outline the behavious people face here today.

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