Why Google Could Lose

The fired and now-infamous Google engineer James Damore may have a federal case against his former employer.

In the aftermath of Damore’s 10-page memo criticizing Google’s diversity initiatives and Google’s subsequent decision to fire him for violating the company code of conduct, Damore has filed an unfair labor practice complaint with the National Labor Relations Board.

It’s unclear from the NLRB’s website what the specific charges are, but it is likely Damore will argue that his memo was an attempt to band together with his fellow employees to try to improve work conditions or repair workplace problems. This concept, known as “protected concerted activity,” allows workers to come together for mutual aid and protection and prohibits employers from retaliating against such activity. This is normally thought of in the labor union context, but the National Labor Relations Act protects concerted activity in both union and non-union workplaces.

The problem is that more and more types of worker conduct – and misconduct – have been rolled into that government protection, to the point of absurdity. Google, and other companies, should rightly possess much latitude to determine what conduct is permissible at their workplace and create a workplace environment that matches the company’s values.

Some people may not see Damore’s views as wrong, but Google did, and the company should have the right to fire him. This incident is not about the free speech rights of employees. The Constitution protects speech from government punishment, not private sector employees’ speech from consequences handed down by their employer.

While it is impossible to fully prevent workers from saying reprehensible or controversial things at work, they shouldn’t be protected by the law for saying those things. Moreover, this country has a long tradition of at-will employment that allows the employer or employee the freedom to terminate the relationship at any time without having to establish a just cause for termination.

But, in yet another new development, a recent court ruling may have made matters worse. In Cooper Tire & Rubber Co. v. NLRB, the 8th Circuit Court of Appeals enforced an NLRB order to reinstate, with back pay, an employee who hurled racist slurs at a mostly black group of non-union employees who crossed a union picket line. An NLRB administrative law judge ruled that the Cooper Tire employee’s comments “certainly were racist, offensive, and reprehensible,” but they “did not tend to coerce or intimidate employees in the exercise of their rights under the Act, nor did they raise a reasonable likelihood of an imminent physical confrontation.” The Board affirmed this decision.

It is shocking that racist slurs are considered protected speech under labor law just because no one was purportedly intimidated and violence was not imminent. Certainly it is important to protect worker rights, but are racist insults really something that labor law should protect?

Judge C. Arlen Beam’s dissent in the case comes to a far more logical conclusion: “No employer in America is or can be required to employ a racial bigot.” But Cooper Tire is not a lone wolf case of protecting untoward speech at work. The NLRB has declared that employee handbooks cannot have blanket prohibitions on disrespectful or rude conduct towards the employer. For example, provisions in a Michigan hospital’s employee handbook violated the National Labor Relations Act because the handbook created rules that prohibited “willful and intentional threats, intimidation, harassment, [and] humiliation.” Incredulously, the NLRB deemed such a policy as exceeding “the bounds of fair criticism.”

So, where does that leave Google with respect to Damore? If protected concerted activity allows individuals to yell racist slurs on the picket line, then workers can probably send a memo criticizing an employer’s diversity program to other staff members in an effort to improve work conditions.

That is bad public policy. The answer to controversy is not more government intervention – nor falsely equating Damore’s firing to a civil rights issue, as Rep. Dana Rohrabacher, R-Calif., has.

If conservatives are up in arms about Google firing someone for holding different views, they should instead exercise a consumer freedom they surely cherish: switch to a different search engine and email service.

Originally published on U.S. News & World Report.