After Google terminated James Damore for his now infamous memo, he claimed that he was fired for concerted activities protected under the National Labor Relations Act (discussed in Part One) as well as for pointing out “potentially illegal policies/behavior.” This post examines whether Damore might have a claim under Title VII of the Civil Rights Act of 1964 for retaliation for opposing his employer’s (allegedly) discriminatory HR policies. (As noted in the first post, this analysis is inevitably premature, as further facts may come to light that could dramatically change these claims.)
When James Damore wrote his internal memo against Google’s diversity policies, was he making an impassioned plea on behalf of politically and ideologically charged ideas? Calling on his fellow workers to fight for changes to company diversity policies? Taking a stand against HR practices that illegally discriminate against protected classes of employees? Was his manifesto all, some, or none of these things?
Professor Bagenstos suggests that I am somehow in league with “skeptics” of the civil rights laws and am calling for a form of “second-class citizenship” in my previous post urging greater use of the “safe harbor” approach in achieving antidiscrimination objectives. Just to repeat: I am advocating an EEOC-supervised program in which individuals in certain categories (identified by the agency) who want to work and, despite the best efforts over decades by administrative agencies and advocates, cannot find work, can enroll and seek work with participating employers who are encouraged to take a chance and hire them because they know that during a limited probationary period employment can be terminated for any reason. This is not an all-purpose panacea and is certainly not intended to foreclose bolstered enforcement efforts of a more traditional type (which I favor). It is intended to break through a kind of employment market logjam, to pursue the achievable good for individuals who chose to enroll and find employment.
A Reply to Sam Estreicher: Second-Class Workplace Citizenship Does Not “Achieve Antidiscrimination Objectives”
For decades, skeptics of civil rights legislation have offered a perverse-effects argument. That argument starts from the well-founded premise that it is more difficult to enforce prohibitions on discrimination at the hiring stage than at the termination stage. Although disappointed applicants rarely know why they didn’t get a job, workers discharged after they have been on the job for a while typically find it easier to build a case. The worker often can point to past performance evaluations, or compare her outputs to those of her coworkers, to show that she was succeeding on the job. And the lore is that juries are inclined to give longtime employees the benefit of the doubt in discriminatory-discharge cases.
Achieving Antidiscrimination Objectives Through “Safe Harbor” Rules for Cases of Chronic Hiring Aversion
As a general matter, and looking only at hiring barriers, our employment discrimination laws have done a good job encouraging employers to take advantage of available talent from populations they might previously not have previously have drawn from. This encouragement comes both from the “stick” – fear of liability and adverse publicity from administrative investigations and lawsuits -- but also from the “carrot” of benefiting from a broader pool of talent and having any negative preconceptions dissolved by favorable experience. In these situations, the laws have served to accelerate desirable market outcomes and, at the same time, enhance the participation in our economy of previously marginalized groups.
In the wake of CEO Travis Kalanick’s resignation last week, Uber is pleading with its employees to stay on with the company. According to the Wall Street Journal, some Uber employees are considering leaving the company after the tumultuous last few months; others who are more hopeful that the company can restore its damaged reputation or fearful that they will lose their stock options with the company will choose to stay. Meanwhile, the Journal reports, some of Uber’s drivers are feeling optimistic about the company in the wake of Kalanick’s departure, especially given the adoption of more driver-friendly policies immediately following his resignation. The Uber Board met for the first time on Thursday to discuss the search for Kalanick’s replacement.
I recently proposed a Workers’ Bill of Rights, and invited others to respond with suggestions for other rights that should be included. I did receive some helpful comments, and in response I would propose adding three additional rights to the ones I had previously...
Recently, following swift and widespread backlash, Pepsi pulled an advertisement that was accused of co-opting imagery from Black Lives Matter protests and other social movements. The advertisement’s storyline centered on model Kendall Jenner abandoning a photo...
Ben Levin is Climenko Fellow and Lecturer on Law at Harvard Law School. What role do private employers have to play in the criminal justice system? And, what does employment law doctrine have to do with mass incarceration? In Criminal Employment Law (forthcoming in...