Last month, a lawyer at the National Labor Relations Board (NLRB) sent an internal memo attacking former Google senior software engineer James Damore’s famous manifesto as “sexual harassment” and defending Google’s decision to fire him last year.
The memo will not directly impact Damore’s lawsuit filed last month, but it may help explain why Damore withdrew his original complaint with the labor board after his termination. Google may also use the memo to defend itself in court.
Damore’s “statements about immutable traits linked to sex—such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding [his] effort to cloak [his] comments with ‘scientific’ references and analysis, and notwithstanding [his] ‘not all women’ disclaimers,” Jayme L. Sophir, associate general counsel for the NLRB’s “Division of Advice,” wrote in the memo.
Sophir argued that Damore’s memo “did cause extreme discord, which [Damore] exacerbated by deliberately expanding its audience. Numerous employees complained to the Employer that the memorandum was discriminatory against women, deeply offensive, and made them feel unsafe at work.” She further noted that “at least two female engineering candidates withdrew from consideration and explicitly named the memo as their reason for doing so.”
The NLRB lawyer argued that Google explicitly fired Damore for this alleged sexual harassment, rather than for any “protected claims” he made elsewhere in the memo.
Sophir claimed that Google acted rightly because “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,’ rather than waiting until an actionable hostile workplace has been created before taking action.”
Damore’s lawyer, Harmeet Dhillon, dismissed the NLRB memo as amateurish. He said the conclusions struck her as “odd” because Sophir had held no hearings in the case and no evidence was given under the penalty of perjury.
The former software engineer has not even been accused of “sexual harassment,” Dhillon explained. “Gender discrimination is really what the lawyer was trying to say,” the lawyer told The Mercury News. “That’s what happens when you run far afield from your area of expertise.”
San Francisco employment lawyer Jason Geller — whose firm represents employers in labor cases — concurred. He told The Mercury News that sexual harassment usually involves a pattern of conduct directed at individuals, or revolves around one or a handful of egregious acts.
“I would think that one memo would not be sexual harassment in a legal sense,” Geller said, flatly.
Damore’s memo claimed that Google fostered an “ideological echo chamber,” excluding perspectives and even facts that went against the tech giant’s political correctness. While Google lamented the prevalence of men over women in the tech industry, Damore suggested there might be natural reasons (rather than discrimination) behind the gender gap.
As part of this, he claimed that “the Left tends to deny science concerning biological differences between people (e.g., IQ and sex differences),” suggesting that men have a greater variance in IQ than women. He also claimed that women are more prone to “neuroticism,” creating more anxiety and a lower tolerance for stress.
After Google fired him, Damore filed a complaint with the NLRB. He withdrew the complaint in September, however, and instead filed a class-action lawsuit in January, accusing Google of discrimination against men, conservatives, and white people.
Damore withdrew his complaint with the NLRB because the board did not appear to be proceeding on it in a timely manner, Dhillon told The Mercury News. The lawyer added that the lawsuit allows Damore to make a broader set of claims, to seek monetary damages, and to join with other plaintiffs who claim to have faced the same discrimination.
“There’s just a lot more things you can do in court for many more people than a narrow claim over whether you were discriminated against for (legally) protected … activity,” Dhillon said.
Among other things, Damore’s lawsuit alleges that Google has fostered an environment of deviant sexual lifestyles and identities, “including furries, polygamy, transgenderism, and plurality,” while displaying a bias against “traditional heterosexual monogamy.” (As for “plurality,” Damore used the example of “an employee who sexually identifies as ‘a yellow-scaled wingless dragonkin’ and ‘an expansive ornate building.'”)
As for the sexual harassment claim, it appears the NLRB’s Sophir not only wrote the memo without conducting sworn interviews, but also echoed Google’s talking points, nearly verbatim.
Egregiously, this lawyer cited Avondale Industries Inc. v. NLRB, a 1996 case in which the NLRB ruled that an employer lawfully fired a union activist for insubordination because she (an African-American) claimed that her foreman was a member of the Ku Klux Klan (KKK) and her claim would be explosive among her fellow African-American employees.
This reference appears intended to tar Damore’s memo as comparable to race-charged gossip of connections with a hateful terror organization. Nowhere in his memo did the former employee insinuate such disgusting rumors about his superiors.
Even so, Geller, the employment lawyer, suggested that Google will likely use the NLRB memo in the legal battle against Damore. “This kind of thing happens in employment litigation often when lawyers might introduce court orders or judicial decisions from other jurisdictions or scholarly articles or the like to persuade the court to its point of view,” he said.
“You could certainly anticipate Google bringing it before the court’s attention,” Geller concluded. Perhaps this is why Sophir wrote it in the first place — even in the absence of sworn testimony and a worthy investigation.