A labor law expert told Business Insider that James Damore, the person who wrote the anti-diversity manifesto has an above decent chance of winning the case.
“He filed his complaint against Alphabet (Google’s corporate parent) under a provision of the National Labor Relations Act that protects workers’ rights activists. Under that provision, Damore’s complaint will not be about whether he was discriminated against as a white person, a man, or a conservative, or whether the company had a right to let him go as an “at-will” worker,” according to the business insider.
Valerie Sharpe says Damore has more chances of winning this case as his complaint quotes section 8(a)(1) of the National Labor Relations Act, which tells us “coercive statements (threats, promises of benefits, etc.)”
“It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”
The section 7 states:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).”
“The crux of his claim is whether Google penalized him for raising concerns about working conditions (i.e., unfair treatment of white men?)” Sharpe said. “Whether the manifesto really constitutes a ‘concern about working conditions’ and whether he was acting for the good of others will be the dispositive issues. I am not aware of any cases that are exactly on point, but there are certainly cases that litigate this issue and cases where employees are returned to work.”
She says that Damore’s accusations in the treatise are correct.
“Damore’s possible claims really have nothing to do with whether white males are discriminated against in wages and promotion,” Sharpe said. “It is about whether he was fired because he complained that Google’s diversity efforts were unfair to men. He doesn’t have to prove the allegation, just that he made the claim for the purpose of advancing working conditions of himself and others.”
It is being said that Damore is not against diversity, in fact, he questioned in the manifesto whether the company is treating everyone fairly. The manifesto asked to “suggest ways to address” biological differences between men and women “to increase women’s representation in tech without resorting to discrimination.”
“I have conducted probably 100 workplace investigations to assess whether employee complaints about harassment and discrimination violate employee codes of conduct, and I am not sure I would find this to be a violation of a code that merely prohibited ‘unlawful’ harassment and discrimination,” Sharpe said.
Furthermore, it is expected that Google might bring up the issue that Damore circulated his manifesto on company’s employee message board but the question arises, doesn’t the message board is designed specifically to discuss workplace issues?
“Because start-ups like Google have lots of message boards and employer-sponsored forums for employees to discuss work issues (i.e., employee resource groups), Google will have challenges establishing a policy violation,” Sharpe said.