Employers Walk Fine Line When Diversity Challenged From Within

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By Martin Berman-Gorvine

Google’s firing of an employee who penned a controversial memo on the internet giant’s diversity program highlights the challenges employers can face with inclusivity efforts, attorneys and consultants say.

“The first thing to look at” in the Google case “is whether the employee was in violation of any laws or policies,” Tanya Bryant, a management-side attorney who is shareholder and director in the Oklahoma City office of Crowe & Dunlevy, told Bloomberg BNA Aug. 14. “When an employee decides to communicate personal opinions that may violate policies, or state or federal laws, the company needs to step in.”

In the Google case, employee James Damore may have engaged in “gender stereotyping,” which could be “a fireable offense,” she said, while stressing that she isn’t privy to the specific details.

There are two issues that need to be distinguished in this case, Jonathan A. Segal, a partner in management-side law firm Duane Morris LLP in Philadelphia, told Bloomberg BNA Aug. 14. “One is an employee potentially raising concerns about feeling excluded because of his gender and/or race, and about preferences being given to others because of gender and/or race. To a material degree, that’s protected,” and white male employees are just as entitled to raise such concerns as anyone else, he said.

No Right to Engage in Stereotyping

But the other issue is that “you don’t have a right to engage in repugnant stereotypes about women or any other group,” Segal said. Damore “effectively said that women are unsuited for certain roles, which could make someone uncomfortable to work with him,” Segal said. By focusing on that issue rather than the other set of concerns, he said, Google had the right to fire Damore. The company didn’t have to fire him, he added, but it did have the right to do so, on the second set of grounds.

A similar perspective came from Janine Yancey, president of San Francisco-based online workplace compliance training company Emtrain. “I think it’s possible for employers to tolerate different perspectives as long as there is a published ‘floor’ on what is acceptable for that particular workplace culture,” she told Bloomberg BNA in an Aug. 14 email. “Applying that prospectively, employers may want to clarify for their workforce that promoting the idea that one gender is not capable of certain activities conflicts with the culture of the organization and cannot be tolerated.”

But like Segal, Yancey said employees should feel free to express concerns about being excluded. “If some employees want to promote the idea that they are feeling ‘castigated’ for being white or male, or they feel that extensive training is not the method to achieving gender parity—that’s a perspective that can be tolerated as it’s not in direct conflict with the employer’s stated values and goals,” she said.

Joelle Emerson, founder and CEO of Palo Alto, Calif.-based diversity and inclusion consultancy Paradigm, told Bloomberg BNA in an Aug. 11 email that the issue could be handled with “a few key questions: (1) has there been a violation of our code of conduct or HR policies? (2) has there been behavior that is at odds with our organizational values? (3) how does this impact employees in the organization?”

Employees may also have on their side the question, under the National Labor Relations Act, of whether they engaged in protected, concerted activity together with other employees on their terms and conditions of employment, Bryant pointed out. Some states, such as California, also give employees rights to engage in political speech at work, she said.

Politically Conservative Thought Suppressed?

The Google-Damore case has also raised questions of whether politically conservative thought is being suppressed in the workplace, Segal said. He said that is a legitimate issue, but it doesn’t have to be raised by engaging in stereotyping.

All in all, “the facts of this case are not ones around which people should draw broad conclusions,” he said. Still, it does raise broader issues, such as that inclusion means that “people should have their voices heard” and that employers should encourage “respectful dialogue,” although the National Labor Relations Board has deemed some companies’ restrictions on non-respectful speech oppressive of labor organizing rights.

“Sometimes it’s a matter of how it’s framed,” Segal said. “The ultimate goal is to make the business stronger. It can’t be stronger if you rely only on white men, just as it can’t if you exclude white men.”

Inclusivity efforts, Bryant said, can include “planning activities and training where employees work together” who usually don’t have contact with each other. “Employers have to take a firm stance but meanwhile keep a dialogue open with employees.”

To contact the reporter on this story: Martin Berman-Gorvine in Washington at mbermangorvine@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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