Google memo litigation continues, on two fronts

As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, while some aspects of his memo might have been protected under Section 7 — a part of the NLRA that applies to both unionized and non-unionized workplaces — there were parts that stereotyped women and warranted Google’s decision to “nip in the bud” (quoting the NLRB General Counsel) his sexist communication.

The NLRB General Counsel’s decision, though, doesn’t end the litigation. There are now at least two separate lawsuits on-going: One by the memo’s author, James Damore, and another by a critic of Damore’s views, Tim Chevalier.

Both are former employees, terminated by Google for their speech involving Damore’s memo. In his memo, Damore advocated that Google had a culture of discrimination against white men and conservatatives, despite his view that men were in fact biologically better fit to be engineers at the highest level of the tech industry. In contrast Chevalier advocated verbally, through conduct, by email, on social media and on Google’s internal systems, that the Damore memo was “misogynistic,” that it was hostile to protected classes including gender, sex and race, and that it reflected, he alleged, a larger culture of hostility, including bullying, at Google on those same bases.

Damore’s lawsuit includes allegations, under California’s anti-discrimination laws, that Google discriminates against conservatives, Caucasians and men. Damore seeks to represent a class of such individuals against Google.

Chevalier’s lawsuit, also filed under California state law, asserts that he too was terminated for his political speech, including his activities to oppose not only Damore’s memo but also the Trump Administration’s politics and to protect the rights of minorities and women and rights associated with gender preference and sexual orientation. Also, Chevalier, a transgendered man, alleges his termination was linked to his efforts to protect related to sexual orientation and gender preference.

Both complaints are lengthy and warrant additional review by interested readers. Those are just some of their allegations. The merits of Mr. Damore and Mr. Chevalier’s complaints will be litigated, but the filing of their lawsuits illustrates how labor laws like the NLRA interact with employment laws like those at-issue in these lawsuits. An employer can comply with one set of laws and run afoul of another.

Sources: Duvalier complaint; Chevalier complaint.

NLRB clears Google, signals more employer-respectful approach to discipline of workplace misconduct

In a shift from recent NLRB decisions holding employers liable under the National Labor Relations Act’s Section 7 for disciplining employee misconduct that is offensive, disrespectful and harassing, the NLRB General Counsel recently cleared Google of charges that, by disciplining an employee for having written an offensive memo, it had somehow violated the Act.

Section 7 is a part of the National Labor Relations Act that applies to both unionized and non-unionized workforces, so this decision is of equal interest to companies without unions as to companies with unions representing their workforces.

In this case, Google’s employee famously wrote a memo that sought to explain why men received more favorable treatment than women in Google’s high tech workplace. The memo was considered by many to be highly offensive and received substantial national press. Included in his memo were stereotyping comments about women, such that women are more prone to “neuroticism” and therefore less able to work in a stressful environment and that more men score in the “top of the curve” than women.

Although the employee “cloaked” his memo in “science,” especially biology, quoting the NLRB, the Board’s General Counsel refused to engage on the so-called science, instead finding that the stereotyping comments were offensive and specifically offensive in a gender-specific manner, implicating the nation’s laws against sex discrimination. The Board’s General Counsel noted that the memo triggered internal complaints of sexual harassment and multiple female engineering candidates withdrew their applications.

The Board’s General Counsel also refused to condone the parts of the memo that may have been protected under Section 7, which protects an employee’s efforts to further his workplace’s wages, hours and working conditions.

(W)hile 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.

In reaching that conclusion, the Board’s General Counsel noted that Google had drafted the employee’s termination notice to expressly say he was not being let go for any lawful aspects of his memo, but rather specifically and only for “(a)dvancing gender stereotypes.”

Finally the Board rejected the argument that the memo was merely speech and that, as such, it alone may not have been a violation of the anti-discrimination laws.

(E)mployers must be able to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

It is this “nip in the bud” comment that is mostly likely to be cited by future employers. Recognizing that an employer has the right to “nip in the bud” misconduct seems to be a reversal of recent Obama- era Board decisions.

Source: NLRB Advice Memorandum, case no. 32-CA-205351 (1/16/18).

Workplace investigations in the #MeToo era

Looking for an interesting read to brainstorm workplace investigations in the #MeToo era? Here’s a recent article from SHRM that’s worth your time.

Source: “How to Investigate Sexual Harassment Allegations,” SHRM, by Dori Meinert (1/18/18).

State legislatures considering sexual harassment reforms

As previously reported in this blog, Congress has already addressed sexual harassment reforms, including by implementing significant restrictions on the tax treatment and ability to keep confidential settlements and awards related to sexual harassment. Now, as state legislatures begin convening, it is expected that reform efforts related to sexual harassment will be debated at at the state level. Already proposals have been put forth in multiple states. Topics likely to be debated include the following:

  • State level restrictions on the tax treatment of settlements and awards involving sexual harassment.
  • The ability to include confidentiality clauses in settlements involving sexual harassment.
  • Enhanced training obligations.
  • Enhanced reporting procedures and protections.

It is anticipated that such debates will involve not only private workplaces but also government workplaces, and especially the state legislatures themselves as workplaces.

In Colorado, our legislature just convened its 2018 session, and already one bill is pending to enhance training requirements for early childhood providers.

Sexual Harassment Prevention In The American Workplace

In the wake of the many recent sexual harassment scandals, both the Wall Street Journal and New York Times ran major pieces on sexual harassment in the American workplace and its prevention.

It’s a particularly difficult challenge in light of the EEOC’s recent study, which produced what EEOC Commissioner Lipnic called a “jaw-dropping moment,” when concluded by finding that 30 years of training has had no impact on the incidence of sexual harassment in the workplace. According to the EEOC, training just simply hasn’t been effective. As NPR has reported, it’s not just the EEOC that thinks training is ineffective; that is unfortunately the opinion of a good many trainers as well. Now, the EEOC recommends a different kind of training that is less focused on the legal issues and more customized to each workforce. To be sure, though, some training is still a best practice.

Other best practices recommended by the EEOC and in the Wall Street Journal and New York Times articles include the following:

  • Clear and updated EEO, sexual harassment, complaint and anti-retaliation policies (again, with related training).
  • Frequent communication of those policies to workers from hire throughout their employment.
  • Enforcement of those policies, in particular the anti-retaliation policy for people who complain and/or participate in the investigation of sexual harassment.
  • Prompt investigations of complaints or concerns.
  • Effective remedial measures, including discipline up to discharge, where investigations establish a violation.

To that list, this author would add consideration of whether an anonymous complaint reporting system is practical in a company’s workplace.

Sources: The Workplace After Harvey Weinstein: Harassment Scandals Prompt Rapid Changes – WSJWill Harvey Weinstein’s Fall Finally Reform Men? – The New York Times

Quid Pro Quo and Hostile Work Environment, both, just sexual harassment, by a different name

Federal and state law prohibit sexual harassment. The courts have articulate two common types of sexual harassment: quid pro quo (where someone is asked to provide sex in exchange for a job benefit or punished on the job for not providing sex) and hostile work environment (where someone is subjected to “severe or pervasive” mistreatment because of their sex/gender). Whatever the kind of civil rights violation, a complaint of sexual harassment must first be lodged with the EEOC (or appropriate state agency) before a lawsuit can be filed.

In this case, the employee filed a the required administrative charge of sexual harassment but described only a hostile work environment, then when he later sued, he added quid pro quo allegations. The trial court held it was too late; he should have done so in his administrative charge. The Tenth Circuit disagreed holding that, under Title VII’s charge requirement and under federal pleadings standards, the employee’s allegations of sexual harassment were sufficient to put the employer on notice of any kind of sexual harassment, whether quid pro quo or hostile work environment. The court explained that quid pro quo and hostile work environment are just two different examples of sexual harassment.

The case was Jones v. Needham, case no. 16-6156 (10th Cir. 5/12/17).