But that discussion underscores a common misunderstanding among employees, say experts on labor law. The First Amendment protects people from adverse actions by the government, but it does not generally apply to actions by private employers.
“It’s a common misconception — I hear employees raise it all the time,” said Jonathan Segal, a Philadelphia-based employment lawyer. “People don’t have a right in the workplace to say anything they want.”
Debra Katz, a Washington-based lawyer who often represents employees in discrimination cases, called the level of misunderstanding “tremendous,” even though many people know there are limits on what they should and shouldn't say at work. (Public-sector employees, who work for the government, have more protections, she notes.) Under the doctrine of “at will” employment, she said, “employers can fire workers at any time for any reason as long as it’s not an illegal reason.”
The confusion has only grown as politics has become hyper-polarized and social media has given employees platforms to broadcast their views to the world. “More and more, political and diversity issues are converging, and it’s creating disruptions and potentially impermissible comments,” Segal said. “I've seen it on both sides of the political aisle.”
Legal experts note that there are some workplace protections on speech. A relevant one, in the case of the Google engineer who has been identified in media reports as the memo's author, James Damore, is that the National Labor Relations Act does protect workers who engage in “concerted activities” for their “mutual aid or protection.” In other words, said James McDonald, the managing partner of the Irvine, Calif., office of the employment law firm Fisher Phillips, it “has to be apparent that an employee is speaking for a group of employees, like saying 'I'm a spokesperson,' or at least be an invitation to engage in concerted activity.”
Yet the memo, he said, “reads like one person's critique of Google's management philosophy as opposed to a call to action” for co-workers to “rise up and protest.” Damore, according to a report in Reuters, has said that he is exploring his legal remedies and that he submitted a charge to the National Labor Relations Board before his termination.
A Google spokesperson said the company does not comment on individual cases or employees but said the company determined that the portion of the post that references gender stereotypes violates its code of conduct and policies against harassment and discrimination. Damore did not respond to a message sent to his LinkedIn profile or a Harvard University Web page with the same name.
In a message published Monday, Google chief executive Sundar Pichai opened by saying that “we strongly support the right of Googlers to express themselves, and much of what was in that memo is fair to debate, regardless of whether a vast majority of Googlers disagree with it.” But “to suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not okay. It is contrary to our basic values and our Code of Conduct.”
Even if Damore established that his memo amounted to “concerted activity,” said William B. Gould, a professor emeritus at Stanford Law School and a former chairman of the National Labor Relations Board, Google may still be able to assert that the speech crosses a line on stereotypes about women and that it was disruptive and could create a hostile work environment. He also noted that if Damore were able to prove that he was fired because he filed a charge with the NLRB, that would be a violation of the law regardless of the charge's merits.
Gould also said that there have been decisions in California and in a handful of other states that said that when employees pursue subject matter that is “in the interest of public policy, they are protected by common law,” he said, such as an employee who speaks out for believing an employer’s health and safety is not meeting government regulations.
“If he were speaking simply about the appropriateness of affirmative action, that might be a different matter,” he said, “but he appears to be speaking about women in a stereotypical, inflammatory way.”
In the memo, Damore wrote that “I strongly believe in gender and racial diversity” and in a reply to the public response, wrote that “I value diversity and inclusion, am not denying that sexism exists, and don’t endorse using stereotypes. When addressing the gap in representation in the population, we need to look at population level differences in distributions.”
Even if the First Amendment generally doesn't protect employees in the workplace, lawyers say, that doesn't mean employers are generally looking to regulate workers' speech. “It tends to generate more complaints. It tends to lead to inconsistent enforcement. It tends to create problems,” McDonald said.
Still, the confusion remains. “Many people assume that you have First Amendment protections, but the First Amendment only protects you from government restrictions of speech,” Katz said. “The cases are legion where employees get fired for saying things that their employer disagrees with.”