Can you fire an employee for expressing their discriminatory views, or is that speech protected? This was the question the NLRB answered when addressing a recent wrongful termination complaint.Ex-Google employee James Damore, now infamous for that 10-page memo he wrote(claiming that biological differences were the reason more women weren’t in leadership positions), filed a complaint against the company.

Damore says that he was fired for expressing his views, a protected concerted activity.The NLRB released its decision, dismissing Damore’s complaint.The Board said that some portions of the memo may be protected, but others were not.Specifically, his discussion of the biological differences between men and women were deemed “harmful, discriminatory, and disruptive,” which violated Google’s discrimination policies.

This is very interesting, as it finds biology to be discriminatory.The NLRB said Google was within its rights to fire Damore because he violated its policies and his speech had the potential to create a hostile work environment. The Board said:“Employers must be permitted 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.”This decision offers some support for employers, who may be unsure of when an employee crosses the line with expressing their views.

It can get tricky, but in Google’s case, its policies backed up the decision.As for Damore (who is not a conservative), his legal battle doesn’t end here. He also filed a

class-action lawsuit claiming that Google discriminates against white, conservative men.We’ll keep you posted on what will surely be an interesting case.

No Comment