Nlra Case Notes

• Citation: Vol. 32 No. 3
• Publication year: 2018
• Author: By Richa Amar and Jonathan Cohen

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

NLRB Division of Advice Concludes That Google Employee's Statements Regarding Female Employees Were Unprotected

Google, Inc., Advice Memorandum, Case No. 32-CA-205351 (Jan. 16, 2018)

The NLRB Division of Advice concluded that a Google employee engaged in unprotected conduct when he circulated a memo attributing the gender gap in the tech industry, and Google in particular, to certain alleged immutable biological differences between men and women.

In 2017, the charging party, a Google employee, sent a memo to human resources managers and employees outlining his concerns with Google's diversity programs and policies. In addition to criticizing Google's diversity initiatives, the memo argued that women were prone to "neuroticism," resulting in a lower tolerance for high-stress jobs. The memo also argued that men have greater IQ variance than women, resulting in more men than women in both the top and bottom of the IQ distribution. According to the memo, a tech employer's preference for hiring candidates at the "top of the curve" thus results in a candidate pool of fewer women. Numerous employees complained to human resources about the memo, and at least two female applicants for employment withdrew from consideration because of the memo.

Google terminated the employee, concluding that certain portions of the memo violated its harassment and discrimination policies. In particular, Google cited those portions of the memo which "advanced and relied on offensive gender stereotypes." In terminating the employee, Google was careful to notify the employee that it was not basing its decision "on the portions of [the memo] that discuss [Google's] programs or trainings, or how [Google] can improve its inclusion of differing political views," which Google acknowledged raised "important points." Google thereafter sent out a company-wide email notifying employees that, while it supported their right to be critical of its policies, it would not tolerate arguments that "advanced harmful stereotypes."

In concluding that Google did not violate the National Labor Relations Act (Act) by terminating the employee, the NLRB Division of Advice stated that "[a]n 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[,]" and that employers "must be permitted to 'nip in the bud' the kinds of employee conduct that could lead to a 'hostile workplace'. . . ." It further stated that "[w]here an employee's conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions."

Applying these standards, the Division of Advice found that the employee's statements about immutable traits of women "were discriminatory and constituted sexual harassment[,]" and that such statements "were likely to cause serious dissension and disruption in the workplace." Moreover, the Division of Advice found that Google terminated the employee "only because of [the] unprotected discriminatory statements and not for expressing a dissenting view on matters affecting working conditions[,]" citing both the "carefully tailored" message Google used in discharging the employee, and the subsequent company-wide email describing the basis for its action.

Board Concludes That After Two Remands, Further Proceedings in Nearly Two-Decades-Old...