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The Google engineer who caused a news and social media firestorm over a memo criticizing the company’s diversity efforts may get a boost from a recent appeals court win for a Cooper Tire worker fired for shouting racist insults at replacement workers during a strike.
Google fired James Damore for the memorandum, in which he argued that conservative viewpoints are censored at the company and said the gender inequality in software engineering work can be explained largely by biological differences. He filed a National Labor Relations Board complaint against the company Aug. 7.
The Eighth Circuit one day later agreed with an NLRB order forcing Cooper Tire to rehire Anthony Runion. He had been fired by the company for yelling “Hey anybody smell that? I smell fried chicken and watermelon,” and other similar comments at a group of mostly black replacement workers.
An NLRB administrative law judge acknowledged that Runion’s comments were “racist, offensive, and reprehensible” but said the company violated federal labor laws by firing him for legally protected collective activity—participating in a strike—that didn’t involve violence. The company took the dispute to court and argued that it has a right to enforce rules against racial harassment, but a divided U.S. Court of Appeals for the Eighth Circuit said federal anti-bias laws didn’t require that it go so far as to fire Runion.
That decision could come in handy for Damore in his NLRB case against Google. Although he was fired for advancing stereotypes that some workers may find offensive, Damore says the tech giant retaliated against him for concerted activity protected under the National Labor Relations Act.
“We just saw an appellate court upholding the board saying a striker yelling overtly offensive racial epithets at a group of workers was not enough to lose the protection of the NLRA,” Seth Borden, a McGuireWoods LLP partner who represents employers in NLRB litigation, told Bloomberg BNA. “And now they’re going to be considering whether or not these sort of bland and hackneyed gender stereotypes in this guy’s rambling manifesto were enough.”
Google referred Bloomberg BNA to a company blog post in response to a request for comment.
“First, let me say that we strongly support the right of Googlers to express themselves, and much of what was in that memo is fair to debate, regardless of whether a vast majority of Googlers disagree with it,” Google CEO Sundar Pichai wrote. “However, portions of the memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.”
The conflict between labor and workplace discrimination laws may be coming to a boiling point. The Google and Cooper Tire cases “raise an interesting juxtaposition of two federal laws that in these fact patterns may be running heads on into each other,” John Raudabaugh, a former NLRB member, told Bloomberg BNA.
A federal judge in Washington, D.C., wrote in an opinion last year, Consolidated Communications Inc., that she is concerned about what she referred to as the board’s “enabling approach” toward “sexually and racially demeaning misconduct of some employees during strikes.”
Although the contexts are clearly different, the same concerns could arise in Damore’s case.
The Equal Employment Opportunity Commission also recently acknowledged an open question about where protected labor activity becomes unlawful discrimination or harassment. The agency said it “has not considered this matter” in response to a request for an EEOC legal opinion on whether Title VII and other EEO laws conflict with the NLRA, specifically as construed in the Cooper Tire and Consolidated Communications cases.
“We recognize the importance of this issue and appreciate your focusing our attention on it,” the EEOC said.
The EEOC also said in June 2016 that it needs to “confer and consult” with the board to “determine what conflicts may exist, and as necessary, work together to harmonize the interplay of federal EEO laws and the NLRA.”
The issue has important implications for businesses, workers, and labor practitioners alike.
Borden noted factual distinctions between the two situations, but he acknowledged the challenging interplay.
“As the scope of protection has been so greatly expanded over the years, the area where these issues come into conflict has become more aggravated, and I think that’s reflective in these cases,” Borden said. “There’s real tension there, and I definitely think we’re seeing that tension play out in more and more cases.”
The NLRA itself states that it’s official U.S. policy to encourage collective bargaining and protect workers’ right to associate freely for the purpose of negotiating terms and conditions of employment. Federal anti-bias laws such as Title VII establish a national policy of protecting workers from discrimination and hostile work environments.
That raises questions like the one posed by the Google and Cooper Tire cases: If racially offensive picket line conduct is protected by the NLRA, what about sexist communications on a shop floor?
Damore’s case may come down to whether the memo qualifies as the kind of collective activity protected under federal labor law and whether it was meant to address terms and conditions of employment. Several lawyers and former board members told Bloomberg BNA they leaned toward a determination that Damore’s memo is protected.
At the very least, Borden said, some portions of the memorandum are likely to be considered concerted activity for the purpose of addressing work conditions. All noted that the memo contains personal opinions, sweeping generalizations, and stereotypes that they reject. But they also said that doesn’t mean he’s not protected by federal labor law.
“I think the most important thing is that he’d emailed this document and shared it repeatedly with many Google workers,” said Raudabaugh, now a labor law professor at Ave Maria School of Law in Naples, Fla. “So it seems to me, and clearly, that he was implicitly soliciting feedback and support for his position, and this would be protected under current NLRB case law.”
“There’s arguably a lot in the memo that relates to the terms and conditions of employment,” Peter Finch, a former NLRB staff attorney and current partner at Davis Wright Tremaine LLP, told Bloomberg BNA. Finch noted the memo’s discussion of conservative voices in the workplace and its specific criticisms of Google’s diversity and other programs.
Borden also agreed that the memo, or portions of it, would likely be considered concerted activity.
“He’s alleging that promotions and such are being afforded to folks on a discriminatory basis, due to gender or something else,” Borden said. “Those types of complaints in a document circulated to dozens or hundreds of his co-workers falls squarely in the scope of concerted activity as the board has recently expanded it.”
The board created its test for whether an employee’s behavior is so egregious that it loses protection of the NLRA in a 1979 case, Atlantic Steel Co.
The board considers "(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices.” Importantly, the Eighth Circuit noted that this standard applies to workplace misconduct and not to off-duty conduct such as communications on the picket line.
Because the determination is so fact-dependent, it’s difficult to predict how the board or a judge would come down in a particular case like Damore’s.
“The portions the board might find are protected are where” Damore “is trying to make cohort with a specific audience of his co-workers,” Borden said. “Whether or not the rest of it causes him to lose” is an open question.
To contact the reporter on this story: Hassan A. Kanu in Washington at firstname.lastname@example.org
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