An “advice” memorandum issued by the Division of Advice within the Office of General Counsel of the National Labor Relations Board (NLRB) has concluded that an unfair labor practices charge filed with the Board by James Damore – who was fired from his systems engineering job with Google after he authored a memo critical of the company’s diversity initiatives that went viral – lacks merit.
The January 16, 2018 Advice Memorandum, which was made public on February 15, concludes that while Damore’s memo contained both protected and unprotected statements, Google’s action in terminating his employment was based solely on the latter and thus did not implicate his rights under the National Labor Relations Act (NLRA). The Division of Advice provides guidance to the NLRB’s Regional Offices regarding difficult and novel issues, including whether to pursue a formal complaint or recommend that a charge be dismissed.
Finding that an employer’s “good-faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws,” the advice memo concludes that some of Damore’s assertions were “so harmful, discriminatory, and disruptive” as to fall outside the scope of NLRA-protected speech. These included several assertions about “immutable traits linked to sex,” including that “biological differences” between men and women largely explain the tech sector gender pay gap.
Notably, the position taken by the Division of Advice in this case is in sharp contrast to the position the Board took in the Cooper Tire case, which involved racist comments made by an employee on a picket line that were directed at replacement workers. In Cooper Tire, the Board held, and the Eighth Circuit Court of Appeals subsequently affirmed, that the employee’s statements, while racially offensive, were not accompanied by violent or threatening behavior – and thus were NLRA-protected.
A copy of the NLRB’s Advice Memorandum regarding the Damore charge is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.