Lawsplainer: The NLRB Damore Memo

A lot of ink is being spilled about a memo from the National Labor Relations Board ("NLRB"), which found that Google did not violate the law by firing James Damore over his controversial memo. Some people are outraged and think that the memo means that science is illegal now; some people are triumphant and think its means that James Damore is wrong about everything as a matter of law.

I'm not going to move anyone off of any opinion about James Damore and am not interested in trying. However, here's a small amount of information to help you be outraged, or triumphant, more accurately and precisely.

Here we go.

In California, absent a contract that says otherwise, employment is "at will" — that means your employer can fire you for any reason that's not prohibited by law. For instance, you can't be fired because of your race or religion, for whistleblowing, and so forth. But you can be fired for a wide variety of reasons, some of them excellent and some of them stupid.

The National Labor Relations Act of 1935 ("the Act") provides one limitation on firing people. It's intended to protect employees' right to organize unions. Section 8(a) provides, in a great many words and ifs and buts, that employers can't fire or discipline employees for engaging in labor organization activity. However, courts and the NLRB also recognize that an employer can discipline or fire an employee for behavior that is sufficiently disruptive or in violation of an employer's legitimate rules, even if that behavior is also related to organizing employees. In other words, saying that you did something in order to organize your coworkers does not insulate that thing completely from employer discipline.

In August 2017 James Damore filed a complaint with the NLRB asserting that his memo constituted organizing activity protected by the Act and that Google therefore violated the Act by firing him over it. This initiated an administrative procedure within the NLRB that could have led to a trial before an Administrative Law Judge.

The NLRB has now released an Advice Memo from its General Counsel's office about the case. The memo is a recommendation that the Regional Director responsible for the complaint dismiss it rather than letting it proceed. It's moot, since apparently the memo and Damore's voluntary dismissal of his complaint crossed in the mail. The NLRB uses Advice Memos to guide its nationwide staff in resolving cases; though not always public, sometimes they are made public to reveal a change in NLRB policy about a particular issue or interpretation of a particular law. The NLRB's policies and interpretations of labor law can change as presidents appoint new commissioners to the five-member board. Advice Memos are not treated like court opinions; though they guide NLRB decision-makers, they do not bind Administrative Law Judges or courts.¹

The Advice Memo about the Damore case recommends dismissal of Damore's NLRB complaint based on a conclusion that Google did not violate the Act by firing him. The Advice Memo assumes, for the sake of argument, that Damore's memo was labor organizing activity protected by the Act. It finds that most of the memo, given that assumption, would be protected by the Act and that Google could not fire him for it. However, the Advice Memo agrees with Google that it could fire Damore because two parts of the memo violated Google's policy against discrimination. One part suggested that fewer women may seek high-stress jobs because women "on average" have more "neuroticism (higher anxiety, lower stress tolerance)." Another part suggested that men may have greater extremes, high and low, in IQ than women.² The Advice Memo reviewed prior Advice Memos discussing how employers could react to organizing activities that incorporated discriminatory content, and concluded that the memo's use of "stereotypes based on purported biological differences" was not protected under the Act, in part because of Google's evidence that Damore's memo caused dissent and disruption. In other words, it concludes that those statements represent the sort of discriminatory comment that an employer may lawfully punish. The Advice Memo concludes that Google therefore did not violate the Act by firing Damore.

One could attack the Advice Memo on several bases. Some prior NLRB Advice Memoranda suggest that the NLRB must consider proportion — that is, how much of a particular example of organizing activity was disruptive. Here the Advice Memo relied on two rather isolated parts of the Damore memo, while conceding the rest would be protected. One could also argue with the conclusion that the particular references were discriminatory and whether it was appropriate to dismiss them as an "effort to cloak the comments with 'scientific' references," as the Advice Memo says.³ However, past Advice Memoranda appear to give employers a significant amount of deference in making employment decisions about speech they deem discriminatory; it's not clear to me that this decision — even if wrong — is a departure.⁴ I'd also note that the deference to employer concerns about "disruption" is consistent with the path recently taken by courts in other contexts.

That's what the Advice Memo is. Here's what it's not: a court ruling that Damore's memo was discrimination or harassment, authority for the proposition that his memo would support a sexual harassment claim (among other things, actionable sexual harassment has to be severe or pervasive), a ruling that governs Damore's civil case or any other claim based on other laws, or precedent that binds anyone other than NLRB staff. It is merely an internal administrative rejection of Damore's assertion that Google violated the Act through his firing.

So: be outraged, be triumphant, but be so accurately.

Copyright 2017 by the named Popehat author.