PC Culture

The NLRB Weighs in on James Damore

Google headquarters in Mountain View, Calif. (Stephen Lam/Reuters)

From Ars Technica:

Former Google engineer James Damore has attempted to take civil and legal action against his former employer after being fired in August, but on Thursday, a federal memo revealed that one of Damore’s filings has been unequivocally denied.

The National Labor Relations Board published its memo this week, which was issued in January after Damore filed a charge against his former employer on August 8. In spite of Damore withdrawing his NLRB filing in September, the board proceeded to examine and issue its own ruling: Google “discharged [Damore] only for [his] unprotected conduct while it explicitly affirmed [his] right to engage in protected conduct.” The NLRB emphasized that any charge filed by Damore on the matter should be “dismissed.”

This is called an “advice memo.” It assumes, arguendo, that Damore’s memo to his coworkers was “concerted and for the purpose of mutual aid and protection,” a type of activity that is normally protected under law. It goes on to say, though, that he crossed a line in discussing scientific research on sex differences.

In my view, if Google wants to ban its employees from writing politically incorrect things in company communications, it should be free to. But the NLRB’s memo is insane.

The NLRB “has a duty to balance an employee’s statutorily-protected rights against an employer’s legitimate right to enforce its workplace rules and managerial prerogatives,” the memo notes, especially when those rules are needed to comply with antidiscrimination and sexual-harassment laws. In past cases, the NLRB has held it’s okay for an employer to fire “a union activist for insubordination based on her unfounded assertion that her foreman was a Klansman,” to discipline “a shop steward who had made debasing and sexually abusive remarks to a female employee who had crossed a picket line months earlier,” and to discipline “an employee for distributing a newsletter in which he directed one named employee to ‘come out of the closet.’”

So far, so good. But what does that have to do with Damore’s memo, which suggested that sex differences in personality might help to explain women’s underrepresentation in tech? Many experts who study these issues agree with what he wrote, and even Delusions of Gender author Cordelia Fine, a University of Melbourne professor who most assuredly does not agree with him, has said that his summary of sex differences is “more accurate and nuanced than what you sometimes find in the popular literature”; that some of his ideas are “very familiar to me as part of my day-to-day research, and are not seen as especially controversial”; and that “there was something quite extraordinary about someone losing their job for putting forward a view that is part of the scientific debate.”

Well, the NLRB knows better, and what he said is no better than the aforementioned “debasing and sexually abusive remarks”:

The Charging Party’s use of stereotypes based on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases. Statements about immutable traits linked to sex—such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding effort to cloak comments with “scientific” references and analysis, and notwithstanding “not all women” disclaimers. Moreover, those statements were likely to cause serious dissension and disruption in the workplace. Indeed, the memorandum did cause extreme discord, which the Charging Party exacerbated by deliberately expanding its audience. Numerous employees complained to the Employer that the memorandum was discriminatory against women, deeply offensive, and made them feel unsafe at work. Moreover, the Charging Party reasonably should have known that the memorandum would likely be disseminated further, even beyond the workplace. Once the memorandum was shared publicly, at least two female engineering candidates withdrew from consideration and explicitly named the memo as their reason for doing so. Thus, while much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

Heaven help us if telling the truth — or at a bare minimum, taking a position that is well within the mainstream of a scientific debate — is “discriminatory and constitute[s] sexual harassment.”

National Review

Welcome to the New NationalReview.com

Well, it’s here. The old NRO has gone; the new NationalReview.com has taken its place.

We hope you’ll like it. It was designed to be quicker and more intuitive, and to act as a showcase for a wide variety of our projects. These days, we publish a lot more than just text, and we need a site to accommodate that. This is it. It is also a site that — hopefully! — reflects what so many of you have told us over the last couple of years (with varying degrees of politeness!). Over the next week or so we’ll introduce you to its new features and offerings. Watch this space for more information!

As is common, I imagine there’ll be some bugs in the first few days, so please do bear with us as we iron them out. After that, please get in touch if you have any questions or observations. We’d love to hear them.

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New Site Is Here!

As you might have noticed, our new site is finally here. The inevitable kinks are currently being worked out, so bear with us. But we hope you like it (we’ll tell you more about all the new features in due course), and congrats to all the people here who have worked so hard to make this possible.

Politics & Policy

People Who Need ‘People’

Francis Lieber (Mathew Brady/Library of Congress)

I open my new Jaywalking with a little meditation on the people. I mean, “the people” as a phrase, in the mouths of politicians. I even play a little music — the opening of Frederic Rzewski’s variations on “The People United Will Never Be Defeated!” (Rzewski is a dyed-in-the-wool leftist, but, I must tell you, he is also a good composer.)

A while back, when I wrote about “the people” — the exploitation of that phrase and concept by demagogues and power-graspers — I heard from a philosopher friend of mine, who quoted Francis Lieber. This is the German refugee who eventually settled in the United States and wrote the “Lieber Code,” i.e., the rules of engagement for the Union Army in the Civil War. This was a prelude to the Geneva conventions.

In his Manual of Political Ethics (1839), he writes,

Who are the people? Is it one individual or a number of individuals, called, for convenience sake, by one name …? Are the people an aggregate of a number of individuals with one mind, one will, one impulse, or do the people consist of a majority and a minority? Giving unbounded power to the people means, then, nothing less than giving unbounded power to a majority …

Often, when people speak of “the people,” they are not even speaking of a majority — rather, they are speaking of people like themselves (however numerous).

In any case, I don’t get too philosophical in this podcast — too Lieberesque. But there should be some food for thought, and a little music to go with it.

P.S. On Need to Know, Mona Charen and I welcome Gabriel Rossman, the UCLA professor who wrote a wise and much-noticed piece on campus conservatives, and the invitations they issue. Then Mona and I talk over the world a bit. Since she mentions the phrase “smooth operator,” and its origins, we of course end with Sade, singing.

Law & the Courts

Robert Mueller’s Alarming, Reassuring Indictment

(Molly Riley/Reuters)

Earlier today Robert Mueller’s office announced the indictment of a Russian “Internet Research Agency” and a number of Russian nationals for various crimes related to their efforts to influence the 2016 presidential election. For those who haven’t had time to read the entire 37-page document, the indictment alleges a comprehensive scheme to use social media to sow discord in the American electorate. Yes, it alleges a campaign to help Donald Trump (and Bernie Sanders), but it also demonstrates an intent to generally sharpen American political divides and radicalize American citizens. Here’s the key paragraph:

While there will be ample time for a more comprehensive evaluation of the indictment, I wanted to expand upon my comment in the tweet. How can an indictment be both alarming and reassuring? It’s simple. I don’t want foreign powers engaging in domestic disruption operations, and I don’t want to see domestic political campaigns cooperating with foreign foes. We have evidence of the disruption operation. We do not have evidence of collusion.

I’m alarmed by the Russian actions. The indictment alleges a long-running effort (one that included identity theft in the United States) to undermine America’s already-weak public trust and — ultimately — to take sides in an American political context. Moreover, this is but one aspect of the overall investigation into Russian disruption operations. The social media program isn’t necessarily related to Wikileaks and the email hacks, and it’s far from certain the indictment encompasses the whole even of Russian social media efforts.

But what’s alleged is bad enough. The Russians sought to generate street protests, suppress voter turnout, and spread disinformation. At one point the cost of the campaign exceeded a million dollars per month — a drop in the ocean of campaign spending but certainly large enough to reach a significant number of Americans. Though Russian actions were of debatable effectiveness (the indictment is largely silent regarding their real-world impact), they were unacceptable. Full stop. I’m reminded of Senator Ben Sasse’s words last March:

Russia is not unaware of our own distrust of each other. Russia is not unaware of our own increasing self-doubt about our shared values. Russia is today very self-consciously working to further erode confidence in our self-government by pulling at the threads of our public and civic life.

That’s all true, but here’s what’s reassuring (at least so far) — there’s no evidence in the indictment of knowing American cooperation with Russian plans, nor is there evidence that could reasonably lead a person to conclude that Russian efforts swung the election. Either conclusion would cause a political meltdown. Neither conclusion is present in the indictment.

There’s one more reassuring element in the indictment. It should help put to rest the notion that Mueller is single-mindedly focused on “getting” Trump to the exclusion of more fully investigating the totality of Russian campaign efforts. To fulfill his mandate to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” by necessity he must examine the nature of Russian operations. This isn’t just an “obstruction” investigation. It’s an investigation yielding results that America needs to see.

Politics & Policy

The Russian Indictments

A couple of points: 1) The indictments are clearly an exemplary act, since the Russians are never going to go to trial. I’ll defer to our lawyers on the legal wisdom of that, but as an American, I’m glad to see these people called out by name and their malfeasance aired out in detail; 2) The political activism described is amateurish, sometimes laughably so; 3) Although the Russians wanted to help Trump, they also wanted to sow chaos generally — and organized anti-Trump events after the election; 4) Mueller still may have evidence of collusion that we haven’t seen, but the indictments, with their emphasis of the unwitting interactions of Americans with the Russian operatives, seem to point the other way.

Politics & Policy

Coverage of the Florida Tragedy is Driven by Anger, Not by Race

Former John McCain advisors Mark Salter (left), Nicolle Wallace (center) and Brooke Buchanan listen as U.S. Republican presidential nominee Senator John McCain (R-AZ) makes a statement to reporters in West Des Moines, Iowa, September 29,2008. (Brian Snyder/Reuters)

I’ve largely stayed out of the latest frenzy of commentary about the shooting in Florida, because as I’ve written many times before, I hate the post tragedy argle-bargle (how much I hate it is on full display in today’s G-File). Everything has been said before – itself an indicator of how depressingly common these horror shows have become – but it appears the media must make sure that everybody says it again, only louder.

Still, I found Nicolle Wallace’s statement today to be particularly galling, which is saying something given the riot of galling commentary out there. Newsbusters has the full write-up but the gist is this mass murder is getting so much attention because the victims were white. “We’re talking about this because, let’s be honest, 17 white kids were [killed].”

First of all, I have a hard time believing that MSNBC wouldn’t have saturation coverage of the mass-murder of 17 black kids. If Wallace’s indictment of the media reaction is to be taken seriously, it has to include not only her show, but her networks (both NBC and MSNBC). Does she really mean to say such a thing? If the charge of institutional racism has merit, then this is a classic example of self-owning.

Second, I find this argument hard to square with another prominent line of media criticism. Fox News and other conservative outlets have been harshly criticized for hyping the death toll of African Americans from gun crimes in Chicago in recent years. I’ve thought some of that criticism had merit, and still do. But if we’re to take this argument at face value, then Fox should be praised for shining a light on an issue that other networks – presumably because of their institutional racism – were comparatively uninterested in.

This horror show is bad enough. There’s no need to leach the attendant passion and pathos in order to advance other grievances not in play. I wish these events got less wall-to-wall coverage because I think it encourages copycats. But I think the coverage is understandable. People are rightly interested in, and horrified by, the wanton murder of children, full stop. Race has nothing to do with it.

Law & the Courts

A Specific, and Unheeded Warning to the FBI

(Thom Baur/Reuters)

On the heels of yesterday’s discussion of just how many “red flags” surrounded the Lakeland shooter, the Federal Bureau of Investigation issued a stunning statement that confirms that sometimes, someone can see something, say something… and law enforcement authorities will not act upon the warning:

On January 5, 2018, a person close to Nikolas Cruz contacted the FBI’s Public Access Line (PAL) tipline to report concerns about him. The caller provided information about Cruz’s gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the potential of him conducting a school shooting.

Under established protocols, the information provided by the caller should have been assessed as a potential threat to life. The information then should have been forwarded to the FBI Miami Field Office, where appropriate investigative steps would have been taken.

We have determined that these protocols were not followed for the information received by the PAL on January 5. The information was not provided to the Miami Field Office, and no further investigation was conducted at that time.

FBI Director Christopher Wray said in a released statement, “I am committed to getting to the bottom of what happened in this particular matter, as well as reviewing our processes for responding to information that we receive from the public.”

This comes after separate federal authorities failed to put the proper information into National Instant Criminal Background Check System, mistakes that failed to prevent gun sales to the shooters in Charleston and Sutherland Springs, Texas. In the case of the Charleston shooter, the FBI failed to properly enter into its database the information that had been provided by local law enforcement; in Sutherland Springs, the the killer was convicted of domestic violence in 2012 and he received a “bad conduct” discharge from the military. But that information, too, failed to reach the background check database.

The public would like to have faith in law enforcement, and we recognize that FBI employees are fallible human beings. But this is heartbreaking and egregious.

Politics & Policy

Scott Pruitt’s Flying First-Class Was Avoidable, But Not a Scandal

(Joshua Roberts/Reuters)

EPA administrator Scott Pruitt’s decision to fly first- or business-class is hardly a scandal. According to a Politico report, it turns out the decision was his security team’s — not his — and was taken after “he was approached in the airport numerous times, to the point of profanities being yelled at him and so forth.”

Politico’s source, EPA Office of Criminal Enforcement director Henry Barnet, is a career law enforcement official, who joined the EPA under Obama’s administration in 2011. He added:

“The team leader felt that he was being placed in a situation where he was unsafe on the flight#…#We felt that based on the recommendation from the team leader, the special agent in charge, that it would be better suited to have him in business or first class, away from close proximity from those individuals who were approaching him and being extremely rude, using profanities and potential for altercations and so forth,” he said.

#TheResistance was a bit blindsided by this news, especially given that it is their own lack of civility that is responsible for the “scandal.” And so they have switched their argument, contending now that Pruitt deserved the abuse he received for polluting the environment, and calling him a wuss for having to switch seats. Here’s Vanity Fair’s Bess Levin:

Apparently, individuals going up to the E.P.A. administrator and making completely factual statements was a bridge too far#…#It’s not totally clear why the security team believes that only people flying coach think Pruitt is a prick who deserves to be told as much, but perhaps they’ll address that at a later date.

So, no, Pruitt’s first-class seat selection is not a scandal. It is unnecessary, though, and if Levin and Co. want the waste to stop, a good start would be advising their friends to stop verbally assaulting federal officials in airports and on-board planes. (And mailing manure and white powder to their houses.)

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Houston, We Have Conference

National Review founder William F. Buckley Jr.

Dallas, too. On Tuesday, March 6 (Big D), and Wednesday, March 7 (Houston), the NR gang will be in Texas as part of National Review Institute’s cross-country “Remembering William F. Buckley Jr.” program to champion the Buckley Legacy as we mark the tenth anniversary of our founder’s death. In Houston, David French, Kevin Williamson, Rich Lowry, Lee Edwards (author of the acclaimed biography, William F. Buckley Jr.: The Maker of a Movement), and I will be discussing WFB’s life, his consequential legacy, and free speech — a big issue for Bill and for our movement. For more information about the Houston forum, click here.

The Dallas event is a little different. It will take place at the Debate Center at Old Parkland, and it will feature a debate, with David French and Jim Campbell taking on Lawrence Sager and Nelson Tebbe, over the Masterpiece Cakeshop case that is before the Supreme Court this term. Old Parkland is a beautiful setting for what is sure to be a truly invigorating forum. Do join us: Get complete information here.

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