Democratic Equality and Free Speech in the Workplace

Numerous news outlets have by now reported on the contentious memo published by former Google employee, James Damore, in which he criticized his former employer’s efforts to increase diversity in their workforce. The memo, entitled “Google’s Ideological Echo Chamber: How bias clouds our thinking about diversity and inclusion,” claims that Google’s diversity efforts reflect a left-leaning political bias that has repressed open and critical discussion on the fairness and effectiveness of these efforts. Moreover, the memo surmises that the unequal representation of men and women in the tech business is due to natural differences in the distribution of personality traits between men and women, rather than sexism.

Damore’s memo has been roundly criticized for relying on unfounded assumptions about psychological differences between men and women. An August 11 article in Recode, for example, claimed that there is “no evidence that women’s biology makes them incapable of performing at the highest levels in any STEM fields.” Numerous other articles were published pushing back on the lack of evidence presented for Damore’s controversial claims about difference between men and women.

Damore was fired for posting this memo, soon after a large public backlash ensued; Google claimed that Damore had violated company policy by “advancing harmful gender stereotypes.” Damore has indicated that he intends to sue Google for illegally firing him. While at-will employees generally have little protection against firing, some protection exists in the National Labor Relations Act (NLRA). According to Fortune, the NLRA bars employers from prohibiting employees from organizing unions or engaging in concerted activities aimed at improving the workplace. Fortune speculated that Damore could claim that his memo amounted to such concerted activities to improve the workplace. Damore may also claim that Google fired him because he filed a complaint with the National Labor Relations Board. If so, that would constitute illegal retaliation.

Whether or not Damore has a strong legal case, I do not know.  Generally speaking, though, it seems to be an uphill battle for any at-will employee fighting a dismissal based on the content of their speech. The First Amendment of the US Constitution does not protect you from being fired if your boss happens to not like what you say. A Winter 2015 article in Insights (a publication of the American Bar Association) reported several cases where such firings occurred. One individual was fired because of a John Kerry bumper sticker on her car, another individual was fired for discussing his socialist views on a local radio program, and another individual was apparently fired after his boss thought a blog post he wrote on homophones would associate their workplace with “the gay agenda.”

These employers seem rightly deserving of criticism for their questionable firing decisions. The above examples of speech seem unrelated to whether the employees could successfully perform their job responsibilities. Additionally, many Americans already think that employees are legally protected from this kind of retaliation for political speech. They are not, but should they be?

It is important to note differences in the cases cited in Insights and the case of James Damore. While the fact that an employee supports a presidential candidate that the boss dislikes seems irrelevant to questions concerning the employee’s ability to perform job responsibilities, the content and potential consequences of James Damore’s memo seem more relevant to job-related responsibilities. Damore has female colleagues with which he already does or may have to work on projects. Female colleagues would be understandably hesitant to work with Damore, given that he has publicly questioned their basic competences at work. Google has a clear business-related interest in avoiding a hostile workplace.

Moreover, one might emphasize that the employment relationship is a contract between two private entities for mutual benefit. Preventing an employer from being able to end that relationship when the employer deems it no longer mutually beneficial would appear to infringe on the employer’s right to freedom of association. Likewise, let us not forget that the employee also has the right to unilaterally terminate his or her employment with the company.

The above consideration concerning the nature of the employment contract leans heavily on the idea of legal equality between the employee and the employer in the employment relationship. This legal equality differs from what we might identify as a broader notion of political or social equality, which takes into account not only the legally codified aspects of a relationship, but also how those relationships play out in the real world, given the existence of other forms of inequality.

Consider one obvious power differential that exists between most employees and their employers. For employees, their job-related income is likely their primary or only source of income. Losing that job unexpectedly would place them in a precarious financial situation. For employers, the loss of one employee (even a particularly effective one) is not likely to jeopardize the financial health of the organization. In practice, this provides an employer enormous leverage over his or her employees. Employees fear displeasing their bosses and losing their jobs. They may be already self-censoring their speech to avoid angering their bosses in the first place.

Elizabeth Anderson has argued that the point of equality as a political ideal is to rectify just such situations of political inequality, where, for example, employers treat employees as subservient peons. Egalitarian justice, for Anderson, aims to end oppression and “create a community in which people stand in relations of equality to others.” In order to ensure that employees stand in relations of equality to their employers, legal protections may have to be enacted that favor the employees and, thus, tilt the playing field back in their direction.