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Google Engineer's Viral Memo Sparks Legal Questions

A Google engineer's now-viral manifesto criticizing the company's diversity efforts, which in part argues women may not be biologically suited for the technology industry and leadership roles, has renewed discussion about disparities among men and women in Silicon Valley and prompted new legal claims.

The engineer James Damore's termination following the publication of his 10-page memo "Google's Ideological Echo Chamber" raises questions, not just about content, but about whether his controversial views should be protected under both federal labor laws and civil rights laws. Damore has indicated in media reports that he is pursuing all legal remedies following his termination and has said he filed a complaint with the National Labor Relations Board.

"I think it would be a hard case. It's not a slam dunk for either side," said Wilma Liebman, a former Democratic member of the NLRB. "I don't think it's a stretch of the law, but a stretch of the facts. People are shocked by the substance of his comments and the notion of the company trying to shut down dissenting points of view. It raises the question of: How far do the legal protections go?"

Cameron Fox, a partner at Paul Hastings, is representing Google in the NLRB case, a spokesman for the law firm confirmed.

The inflammatory memo also comes at a time when Google and other technology firms face questions about pay equity and diversity and as well as claims of systemic discrimination against women.

"For Google, it's a damned if you do, damned if you don't situation," said Jon Hyman, a management-side employment attorney from Meyers, Roman, Friedberg & Lewis. "Google is in a bad spot here. One on hand, [they] are home of the open internet and want to foster free and open communication and want their employees to speak their mind. By the same token, pay practices have been challenged by the government and they have to say: 'That's not who we are as a company.'"

Hyman said that in choosing whether or not to fire Damore, Google had to pick its poison: Does the company want litigation from the labor board or does it want to face female employees pointing to this memo as proof of a hostile work environment and arguing that the company condones this type of language?

Liebman said Damore has potential legal standing under labor law. He could argue that the code of conduct Google cited as a reason for termination is overbroad and interferes with what could be protected speech under the National Labor Relations Act.

She said a potentially stronger claim, independent of the code of conduct rules, would be to argue that posting his views on the diversity policy was seeking to incite his coworkers to join him, which could be considered "concerted activity" and be protected under the National Labor Relations Act.

The U.S. Department of Labor has investigated Google, alleging gender disparities in pay exist at the company. Google recently fought with the DOL's Office of Federal Contract Compliance Programs over disclosure of salary records--a battle that Google won in part.

There is also at least one plaintiffs firm that has jumped in. Altshuler Berzon is representing more than 60 current and former Google employees who plan to file a class action building on the DOL case alleging sexism and pay disparities.

Damore, who was fired Monday, said in media reports that he filed a complaint with the labor board before his firing because of the company's management "misrepresenting and shaming me in order to silence my complaints."

Google responded to the memo through a message to its employees and by firing the author. The company said in message that it did not learn of the NLRB complaint until after Damore was terminated. Google also argued the engineer violated its corporate conduct policies in writing the memo and said that was the basis of the termination.

The distinction is important because if Google fired Damore because of his complaint to the NLRB, that could constitute a violation, experts said.

But he could have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, said Jeffrey Hirsch, law professor at the University of North Carolina School of Law. He acknowledged, though, that it would be a stretch that the engineer would argue that as a white man, Google's drive for diversity would be a violation of federal civil rights laws.

Another claim Damore could make under labor laws is that the company retaliated against him for filing a complaint to the labor board, he said. He also said a breach of contract claim might be possible because Google may have policies that reflect an "open, free-express-type of culture."

"On the flip, this memo could violate policies against discrimination," he said. "It's a double-edged sword. They may see value in freedom of expression but there are a lot of legitimate concerns with harassment and discrimination in the workplace, particularly in the tech industry. The board will have to engage in a balancing test."