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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.”

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