1) Conservatives are discriminated against at Google, which is a problem for working conditions
2) Google pushes an aggressive voluntary affirmative action policy which aims to hire women and underrepresented minorities at rates much higher than they appear in the relevant sector of the workforce, and the way this is pushed internally is a problem for working conditions
3) The reason women are underrepresented in the tech job market is biology
Notice that 3) has nothing to do with working conditions, it's just an elaboration on why 2) upsets Damore so much; it could have been left out and he would have been covered under the exemption, while still making his point about working conditions and hiring policies.
People within Google are totally free to disagree about whether a 50/50 gender ratio is an appropriate goal, and they are protected under this law as far as protesting those goals as they relate to working conditions. But the ruling says that the specific arguments you bring into play may still be in violation of company policy, and such arguments are not automatically protected by virtue of being connected to a working conditions complaint. Especially when they could be construed as hurting a company's ability to abide by laws regarding hostile work environments.
There's probably room for disagreement about the correct interpretation of the law, but I don't see it as a matter of removing the right to discuss freely, it's merely a tight technical interpretation of where the at-will exemption ends.
If he'd been arguing for better office furniture and Google claimed to fire him over violations of an anti-harassment policy, the NLRB would almost certainly not defer to Google. But he wasn't arguing for better office furniture; he was arguing about biological differences between men and women and how they might impact the distribution of male and female engineers at Google.
For just asking a question? If even entertaining a thought with regards to science, if it doesn't "seem nice" through some narrow ideological lens, has become a crime, then we're already at the level of Lysenkoism.
https://en.wikipedia.org/wiki/Lysenkoism
he was arguing about biological differences between men and women and how they might impact the distribution of male and female engineers at Google.
And why in the world should that be a "thought crime?" There are biological differences that make the population of Asian NBA pros much smaller than otherwise, and the population of high level Kenyan marathon competitors higher than otherwise.
If my boss doesn't like the fact that I put horseradish on my nachos, they can fire me for that. It's only exceptional cases where I'm protected from arbitrary and nasty and capricious actions.
Also, put horseradish on your nachos, it's a good thing.
Ew, jordan! (jk. I love horseradish with almost anything with beef in it.)
Those are great examples because nobody is totally sure of those things either.
As an Asian man let me say this: Stop pandering! It's quite obvious that height is a huge advantage in the NBA. (Also note that biological differences are not necessarily genetic, because I have a guess that you are going to cite diet next.)
But the way this played out, the board ruled the other way, and I think this is a clear warning to future employees seeking protection under this rule: the NLRB will interpret things as tightly as possible, and be very deferential to employer's internal policies even if they hinder the ability to back up a labor conditions complaint with arguments.
Whether that's okay or not is a political fight, and I see how there's a slippery slope here that could theoretically be used to squash many legitimate labor complaints - if a company imposed rules against making people feel politically uncomfortable, would they be able to fire people for wanting to unionize and backing that up with political arguments that might offend capitalists? I'd be surprised if the board didn't act in that case.
But let's be honest. Damore was trying to score a backdoor win through a legal exception that pretty clearly was not in spirit carved out to protect people in situations like his. That's why I also expect him to fail in any CA civil suit, though I'm less certain about that one, political views are more protected in CA than elsewhere.
Just to be clear, I'm not personally in favor of Damore's firing over this memo, it sounds like Google tends to encourage vigorous internal debate about this sort of thing except when it goes public (as witnessed by the inaction until the memo was leaked and the outcry began). Despite his poor sense of what the response would be, I think he was engaging in good-faith argument, at first, at least, pre-Goolag and that nonsense. From what I hear, people on the left are pretty offensive and vitriolic on internal boards at Google without being disciplined [0], so I'd have loved to see management manage the situation and internally broker some peace between the offended parties rather than turn the thing into a classic alt-right recruiting talk-point by firing him. But I'm very much in favor of a company's right to fire anyone, for almost any reason, and I'm glad that was not interfered with here.
[0] Edit: from the memorandum, a Google employee was reprimanded for responding harshly to Damore over email: '“You’re a misogynist and a terrible human. I will keep hounding you until one of us is fired. F[*] you.” The employee was issued a final warning for sending this email. '
In effect, the ruling ratifies a particular squishy, ideological interpretation of science.
Scientific debate doesn't take place in Google forums through Google memos, any more than it happens in HN comments, so what was Damore's point of providing references to back his position, other than a misguided attempt to appear "scientifick"?
The 55-country study he cited has effectively one of the highest P-values in social science of recent years. It's widely considered in psychology to be an important result. Denying this is basically parroting intellectual dishonesty on the level of Global Warming denialism. The Big-5 personality traits he cited are the strongest results in psychology outside of the effect of General Intelligence.
https://www.youtube.com/watch?v=YKmyO3hbOz8
https://en.wikipedia.org/wiki/Big_Five_personality_traits#Ge...
The NLRB is basically saying that it's now open season on anyone who cites scientific studies, based on whether anyone on the internet finds it offensive.
What's happening here isn't a shift. What you're demanding is a new special protection for "people who can defend their position scientifically".
Oh, but I do acknowledge this. I would like to call attention to it. I thank you for your support.
What's happening here isn't a shift.
In the old days, one could cite such studies. The reactions and the consequences are indeed a shift in society. An outrageously authoritarian shift.
What you're demanding is a new special protection for "people who can defend their position scientifically".
Funny, but the NLRB was once a new special protection. The witch-hunts back then had took a different direction. I would grant that your interpretation of what's been discussed and apparently needed as a special protection. It does seem to me that our current society apparently needs special protection for things that used to be ok and which are still vital to the workings of our democratic society. Things like:
Peacefully donating to political PACs.
Peacefully having a mainstream political opinion. (Like being a Republican or a Libertarian)
Civilly stating an opinion.
Peacefully gathering to express political views.
At-will employment is now being used as a political tool against the category of people who are "Classical Liberals" and everyone to the right of that. It is different yet very similar in many regards to at-will employment being used against labor organizers in decades past.
The law recognizes the rights of the owners and managers of companies to organize them out of like-minded people.
If that's problematic for you, you should lobby for employment laws to change. It's arguably not the NLRB's place to come up with new protections; they're an agency largely unaccountable to the voters.
I was once pushed out of a job for being perceived as "too leftist." In retrospect, perhaps I should have claimed harassment.
I don't think any but the most ideologically fervent would consider firing someone for simply being a Democrat or a Republican anything but a crappy thing to do. I understand that at-will employment is a beneficial freedom to employers in the same way that free speech and freedom of association are beneficial freedoms to individuals. However, at-will employment was once used to actively discriminate against people on the basis of race, religion, or place of national origin. Society came to recognize that as a problem, and society came around to change "the social compact." The exploitation of ideologues to use at-will employment to implement "thought-crime" is abhorrent, and by your own admission, has come to be a widespread societal phenomenon.
Of course it is not and I take umbrage at the offensive undertone of your comment ("parroting"? Really?). Psychology is not climate science, it's currently going through a widely publicised reproducibility crisis and in any case, the reliance on p-values has been criticised widely by experts in fields as varied as economics, medicine and of course the humanities. The big-5 model itself has been the subject of much criticism, from inside the field (and the wikipedia article you reference has a big section devoted to that criticism).
More improtantly however, Damore did a lot more than name-drop the big-5 in his memo. The memo is peppered with references to sources from varied fields, from psychology and sociology, to biology, evolutionary psychology, anthropology, economics, statistics and so on.
The problem of course is that Damore is not an expert in any of those fields- much less an expert in all of them. Which tells us that, most of the time, when he says that some paper he's referencing is backing his views, he simply hasn't got a clue what he's talking about and the paper may very well be claiming exactly the opposite than what Damore is saying.
Damore's memo is indulging in cargo-cult science. He references stuff he half-understands in the hopes to do what scientists do. Except he doesn't even understand what scientists do and why they reference others' work: which is to say, not to win a debate and show you're right on the internets, but to contribute new knowledge by building on the knowledge already contributed by others.
To have any respect for science and consider Damore's memo anything else than pseudo-scientific claptrap is a contradiction. To call that garbage "science" is offensive to the work of scientists. That is an even bigger reason to be angry at an idiot like that, without even going to what he was trying to say with his "sai-ent-tifickal" way.
So you're admitting that James Damore is referencing legitimate scientific sources. It's just that you're claiming the whole field isn't valid. Then you go on to make unsubstantiated claims that his interpretations are wrong, but you produce no specifics. That sounds a lot like what climate science deniers do.
Where am I claiming that "the whole field isn't valid"? I said there's a reproducibility crisis and that the reliance on p-values has been criticised in various fields.
I made no claim that his interpretations are "wrong". I said that his interpretations are most likely wrong because he's not a psychologist and he doesn't understand the field. That's what you expect from non-experts who pretend to know what they're talking about, to be talking nonsense.
>> That sounds a lot like what climate science deniers do.
You keep insulting me.
At least provide some citations or examples before you use such childish phrases as "sai-ent-tifickal". You sound really terrible when arguing like that.
No, it just says that you can't wave a “labor organizing” flag to immunize yourself for consequences of violation of your employers facially-reasonable anti-harassment policy, thereby avoiding a situation in which employers could be put in the position of having to choose between violating the NLRA and violating the Civil Rights Act.
Damore's claim is subtly different. He relies on the fact that you do, under the NLRA, have the right to organize to change workplace conditions. But your right to do that is enforceable only through the NLRB, is an exception to at-will employment, and is trumped by federal and state EEO laws. When employee organizing conflicts with employer legal compliance, the employer's low burden to justify a termination is even lower.
The Advice Memo seems to agree that discussion of Google's diversity program was protected speech, until it strayed into scientific findings that some people found offensive.
> expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs, which were likely protected
Damore's memo was critical feedback about Google's diversity policy. The inclusion of certain controversial scientific findings is perfectly reasonable in this context.
I'm saying the right to discuss workplace issues, granted by the NLRA, should include science-based discussion of these issues.
Edit because rate limited:
The problem is not what was said, necessarily, but the way in which it was said. Hence citing the Honda ruling.
This is at least my, not-a-lawyer interpretation. That is, just because you are saying something to discuss workplace issues does not give you the right to say literally anything. Sufficiently disruptive discussion of workplace issues is still disruptive enough to merit a response, not because of the content, but because it is disruptive.
Apparently the NLRB draws the line for sufficiently disruptive somewhere before "results in the demonstrated loss of multiple perspective candidates".
> the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.
Notice the reason the NLRB gave in this statement for why they are unprotected: not because they are unrelated to the discussion of workplace issues, but because they are offensive.
It matters little what you see in the memo. Google and the NLRB saw enough to terminate his employment, and to uphold that termination. This is generally how at-will employment works.
You don't care what the memo actually says? Then what's the basis of your opinions on this matter?
He said it doesn't matter how you interpret the memo.
Throughout this discussion I mostly see people stating their own opinions with nary a quote from the actual memo.
Damore's top line argument was that these diversity programs are causing reverse discrimination, workplace hostility, and monoculture. The rest of what he wrote was descriptive and prescriptive. And bear in mind, EEOC also has a mandate to protect employees who file their concerns over discrimination. I believe the active class action discrimination lawsuit against Google could be a stepping stone to break up this kind of EEOC precedent.
This is the point that I think most people aren't getting. It seems like people are starting from the position that one should be able to have free and open conversations in the workplace. That a company shouldn't be able to fire an employee for dissent.
But this is _absolutely_ not the case with at will employment. If you say just about _anything_ in the workplace (or not at the workplace!) that your employer doesn't like they can terminate you.
I think the quoted sentence is the key to understanding this all. Your 1A rights only protect you from the government. Your employer may not—and does not have to—tolerate a "marketplace of ideas"
According to the NLRB, the National Labor Relations Act grants workers the legal right to discuss work-related issues with each other.
https://www.nlrb.gov/rights-we-protect/employee-rights
This comes from Section 7 of the National Labor Relations Act: "Employees shall have the right to...engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
In this specific case, the Advice Memo refers to protection for "expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs".
The lawyer who wrote this memo argued that Damore's statements would normally be deserving of protection, if they weren't so offensive.
They had a policy that pre-dated this incident such that those statements qualified. The NLRB didn't determine that the statements were offensive. They determined that Google was operating in a reasonable manner when Google decided that those statements were offensive.
In at least one statement which I've quoted here too many times already ("so harmful, discriminatory, and disruptive as to be unprotected"), the lawyer who wrote this memo expressed their own opinion that these statements were too offensive to be protected.
> The Employer has a legitimate, lawful policy prohibiting race and sex discrimination and harassment in its workplace.
> An employer’s good-faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws
> Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions
https://www.popehat.com/2018/02/20/lawsplainer-the-nlrb-damo...
Incorrect; the memo assumed (did not conclude) [0] that Damore’s memo was entirely within the protected purpose, and concluded that even given that assumption, the particular elements within it, for which Google claimed to have fired him, were within the bounds of what Google could fire him for, given their legitimate, pre-existing policy.
A legal decision memo (or a court decision) will often assume a point not because it finds it well supported, but because a dispositive answer to the legal question can be reached without resolving the point on which the assumption is made, and courts and lawyers often prefer to avoid resolving subissues that are unnecessary to resolve in order to resolve the actual question they are posed with.
So it did not argue that Damore’s memo would have been protected but for the identified problematic elements.
[0] key language: “Assuming, arguendo, that the Charging Party’s conduct was concerted and for mutual aid and protection, [...]” (p.3)
https://www.nlrb.gov/rights-we-protect/employee-rights
This comes from Section 7 of the National Labor Relations Act: "Employees shall have the right to...engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
In this specific case, the Advice Memo refers to protection for "expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs".
Calm down dude; we get it. You don't have to post the same comment over and over again to make your point.
You'll have a make more meaningful conversation if you stick to one thread and actually engage rather than just copy/paste your reply.
It's bad forum etiquette everywhere, not just on HN, and it ruins the conversation for everyone.
> When more than one person makes the same provably false claim
/shrug
Right or wrong regarding the content, you're not a one-person-army out there to single handedly defeat all the wrong-doers on HN.
If you're just here to tell people they're flat out wrong, rather than actually have a conversation, you're just spamming the thread.
And that a conversation inspired by false statements should be derailed before it strays even further into fantasyland.
I'm not telling you what to do or that what you're saying is wrong; I'm just telling you you're being rude by doing what you're doing in the way you're doing it.
If you don't care, that's up to you.
No, its saying that the specific manner in which Damore discussed the matter, in the context in which he did (including the specific provisions of Google's pre-existing anti-harassment policy), and the actual effects it had in the workplace, meant that even if the purpose of the speech was the kind protected under the NLRA, the actual actions were not.
> and effectively removing workers' legal right to engage in science-based discussion of whether a 50/50 gender ratio is the appropriate goal
While there is a protected right to labor organizing, it is not an unrestricted right to workplace debate over employer policy goals, even before the kind of conflict with unrelated (to labor organizing) policy at issue here. The NLRB memo did not address the question if whether Damore was otherwise within the bounds of protected labor organizing, it merely found that even assuming his speech met the purpose requirements for labor organizing, Google was within it's rights to fire him based on the specific grounds they cited.