After Google Memo Suit, How Should Companies Handle Digital Discussions on Diversity?

SAN FRANCISCO — Software companies have led the way in using internal messaging apps like Slack and Google Hangouts to do business. But as workers increasingly turn to those platforms to vent about Silicon Valley's diversity woes, the same tools are presenting new legal risks to employers. Ex-Google engineer James Damore's lawsuit against the search giant contains dozens of pages pulled from internal employee Google+ threads focused on diversity issues, all of which Damore's lawyer uses to argue that the company has created a workplace hostile to conservative, white men. But even those who vehemently disagree with Damore's lawsuit—and his widely circulated memo about women in the tech industry—said that companies overall need to do a better job of moderating internal forums on diversity, and making clear to employees what the ground rules are. Employment law attorneys also said companies need to be aware of the risk for things to turn ugly, how they might be held liable if that happens, and the fact that all of these chats might later turn into evidence. "The challenge that these message boards can present is that [diversity] is a sensitive topic and I think sometimes employees, and people in general, using these online discussion forums may say things that they may not say face-to-face," said Erin Connell, an employment law and litigation partner at Orrick, Herrington & Sutcliffe in San Francisco. "You don't know who is reading it necessarily, or how it will be interpreted," she added. "And it's in writing, so by definition, there is a written record of it." Last week Gizmodo, the popular Silicon Valley tech news website, reported about a separate memo claiming that a senior Google executive in 2015 had asked employees to "stop engaging" on a pro-diversity internal thread he thought was becoming too heated. The report offered a counterpoint to Damore's allegations that Google tolerates aggressive comments only when they fall on the liberal end of the political spectrum. But it also highlighted the challenge companies face in steering the discussion. Google representatives did not respond to requests for comment for this story.

Making Policies Known

Connell said she would not advise companies to prohibit the use of internal online forums to discuss workplace diversity, noting there are protections for concerted activity. But she said that employers need to make their workers aware that policies against harassment and discrimination apply in those channels the same way they would in an actual office. Mark Konkel, an employment law partner at Kelley Drye & Warren in New York, agreed. Employers should be making sure that workers are confronted with those policies — and asked to agree to them — before logging on to internal forums, he said. "The real key to reducing liability is not maintaining a static policy on a shelf somewhere, but actively engaging employees," Konkel said. He noted that while email and internal chats or message boards have similar traits — they're all fast, informal, and electronic — chat tools have particular qualities that seem to lead employees to be more unfiltered. "In other words, you have people thinking less and writing more than they otherwise would," Konkel said. "I expect in the future to be trafficking in cases in which a lot of the damning evidence, if there is any, comes in that electronic form." From a legal perspective, employers could face claims for violating state or federal anti-discrimination laws if an employee offended by discriminatory comments on an internal channel can show the company knew or should have known about them, but failed to take action. Companies could also be directly liable if managers are the ones accused of making those comments.

'Vat of Evidence'

The lawsuit brought by Damore includes both kinds of allegations. Damore was fired after his memo — in which he argues that tech's gender gap is attributable to biological differences between men and women, not gender bias — was picked up by the tech press and went viral. The class-action suit argues Damore's punishment was reflective of a culture that permits harassment and discrimination against white men and political conservatives. Much, if not all, of the allegations are tied to statements made by employees and managers on internal Google+ message threads. "What Google has done is create a huge vat of evidence of its selective discrimination against certain categories of people at the expense of others," said Harmeet Dhillon of the Dhillon Law Group, who is representing Damore and co-plaintiff David Gudeman. Dhillon said she obtained the threads from clients who did not want to be named. She rebutted any notion that the internal communications were private. "There's no privacy on your workplace server for 80,000 people," she said. [caption id="attachment_8753" align="aligncenter" width="494"]

A page from Damore's legal complaint, from a section titled "Anti-Caucasian postings"[/caption] Critics of Damore say Google was within its rights to fire him for expressing views disparaging of women. The company is almost certain to argue in court that he was terminated not because of his political convictions, but for violating workplace policies (which are generally permitted to be more stringent than federal or state anti-discrimination laws). Dhillon argues those policies are selectively enforced at Google and made up on the spot. Damore, she said, was told he was being fired for "perpetuating gender stereotypes" — a policy she contends was not written down anywhere. "Where's the notice to people? That's completely arbitrary." Valerie Aurora, a former programmer in Silicon Valley who now consults tech companies on diversity and inclusion, said that companies do not have to — and should not — create channels where employees are permitted to express views that are sexist, racist, or otherwise discriminatory. She also stressed that companies need to take a proactive role in establishing codes of conduct, making them visible in the channel, and enforcing them. “You actually have to moderate,” Aurora said. The medium, she added, is not the problem. "I have bad news for you: they'll say it in person," she said. "I don't think the online-ness versus the offline-ness really matters."