Q And A On The Recent Controversy

by Constangy, Brooks, Smith & Prophete, LLP
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On the recent uproar involving a major, major employer and its recently-terminated employee:

No. 1. Is it a good idea to provide an “open forum” to employees if there are certain topics that are off limits? No. If you want to provide a forum for employees to speak up, but only “within reason,” then it’s a good idea to establish and communicate your limits in advance. That way, if someone crosses the line and has to suffer consequences, at least you provided fair warning.

That said, regarding this particular case, it is not clear to me that the communication was made on such a “forum.” In a recent video interview, accessible here, the employee indicated that he wrote the memo about a month ago while en route to China and shared it with a few co-workers. That doesn’t sound to me like a “forum” communication. But elsewhere, I’ve read that it was communicated through established company channels. (I’m still unclear on how the memo was ultimately leaked to Motherboard and then published on Gizmodo.)

No. 2. What if an employee communicates “politically incorrect” views that conflict with the employer’s corporate philosophy? If the employee is not a member of management, and assuming the communication is made in a constructive manner, then I would love to see employers welcome it as an opportunity for dialogue rather than consider it ground for termination. The company could reiterate and explain the rationale for the corporate philosophy, or even provide a civil and reasoned rebuttal to the employee’s views.

(If the views are expressed by someone from the supervisor level on up, then they should be expressed in a way that doesn’t jeopardize the company’s legal position. Arguably, any member of management is legally “the company.”)

No. 3. Was this employee’s memo “protected concerted activity” within the meaning of the National Labor Relations Act? Could be. The employee is making that allegation. The memo concerned terms and conditions of employment, and was initially circulated to a small group of co-workers. Contrary to a Wall Street Journal editorial that I read this week (paid subscription required to access), an employee can engage in PCA as an individual, as long as he is either acting on behalf of at least one other employee or is preparing for group action. And employees have a right to engage in PCA whether the employer is union or non-union.

Concerted activity.

No. 4. Would the employee have a valid retaliation claim against the employer? That’s an interesting question. The New York Times reported that he had filed a charge with the National Labor Relations Board. A redacted copy of the actual charge is now available on Gizmodo. But did the employer know about the charge when it fired him? I doubt it. The copy on Gizmodo indicates that the charge was filed on Monday (the same day that the employee was fired) and was not mailed to the employer until Tuesday. The NYT article came out on Monday, but I believe it was late in the day. The employer obviously could not have retaliated against the employee for filing a charge that the employer didn’t know about. Also, even if the employer was aware, was it the charge that resulted in termination, or was it instead the social media storm that ensued after the memo was posted on the internet? If the latter, then that would not be retaliation for filing an NLRB charge.

No. 5. What about the employee’s free speech rights? The First Amendment to the U.S. Constitution prevents the government from punishing or restraining someone from engaging in speech. The First Amendment doesn’t prohibit limits on speech that are imposed by private individuals, or private sector employers. Thus, this private-sector employer did not violate the First Amendment by firing the employee. (I’ll defer to my colleagues in California about whether there is any arguable violation of his free speech rights under state law.)

Can women do tech? Of course!

No. 6. What do you think about what the memo said about women in tech? First, I’m a lawyer, not a techie. On the other hand, I am a woman, so I have that going for me.  :-)

I have no doubt that there are many outstanding women in IT. But I do agree that if you take the general male population and compare it with the general female population (statistically speaking), you are probably going to find that more men than women are drawn to that type of work. Which would mean that disparities in the industry are not necessarily a result of employment discrimination and may not be remediable through diversity efforts.

In this respect, the argument seems analogous to my position on the gender-based pay gap (in a nutshell, I believe that the pay gap exists but is primarily due to choices that women make about quality of life, family responsibilities, etc., rather than discrimination). I have read this employee’s memo, and I did not interpret him as saying that women are biologically “inferior” to men or that women are “incapable” of working in tech. In fact, he took pains to point out that he was not saying this and was not opposed to diversity efforts. I think the points that he actually made, as opposed to what has been (mis)reported by some in the media, are legitimate subjects of discussion.

No. 7. Was this employer in a “no-win” situation? Yes. As Kristine Sims has reported on this blog here, here, here, and here, the employer is in the midst of contentious litigation with the Office of Federal Contract Compliance Programs, in which the OFCCP claims systemic, gender-based pay discrimination. It was also reported this week that roughly 60 women are thinking about filing a class action lawsuit against this employer, claiming sex discrimination and pay discrimination. So, yeah, the employer was probably thinking this memo was absolutely the last thing it needed at this particular time.

Image Credits: Still images from flickr, Creative Commons license. Virus book cover by microbiologybytes, concert by Jim the Photographer, Women Who Code by Alaina Percival. YouTube clip of Val Kilmer from Tombstone (1993).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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