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Comment by tptacek | Hacker News Reader

You don't have a legal right to engage in science-based discussion of anything at your workplace!

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.

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> You don't have a legal right to engage in science-based discussion of anything at your workplace!

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"

This is probably worth repeating:

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".

Yes, and the specific details of this case are not protected by the NLRA. Also according to the NLRB.

Yes, we all agree that's what the NLRB said. We're discussing how they came to this conclusion.

The lawyer who wrote this memo argued that Damore's statements would normally be deserving of protection, if they weren't so offensive.

They didn't say that. The lawyer who wrote this memo argued that Google had wide latitude in determining what qualified as sexual-harassment.

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.

Perhaps it would be helpful if we cite the statements we're referring to. Which statement do you interpret as saying "Google had wide latitude in determining what qualified as sexual-harassment"?

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 determined that certain portions of the Charging Party’s memorandum violated existing policies on harassment and discrimination

> 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

This seems like an interesting discussion to continue, weighing the deference the memo mentioned to the employer's policy against the fact that they ultimately make their own determination (which they must, of course, make to avoid abusive or spurious claims of harassment). Sadly, I'm too tired to continue right now. Perhaps another time.

I think Popehat (a fairly respected defense lawyer and first amendment blogger) has a fairly good write up of the NLRB memo and what it's ruling says here:

https://www.popehat.com/2018/02/20/lawsplainer-the-nlrb-damo...

> The lawyer who wrote this memo argued that Damore's statements would normally be deserving of protection, if they weren't so offensive.

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)

The Advice Memo clearly implies skepticism at Damore's intent and the sources own which he relied. It sets the precedent for successful EEO claims against any venue where the content contravenes similar social justice based codes of conduct and employment agreements.

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.

And I may be reading a bit too much into the "ruling", but I expect that their decision would have held even if employees did have a right to engage in "science based discussion" as GP posits. That's why they cite the Honda ruling. Essentially even if the content is not a-priori problematic, the way it is presented was.

Once again I'm not positing a right to "science-based discussion".

I'm saying the right to discuss workplace issues, granted by the NLRA, should include science-based discussion of these issues.

It does. So far, about 4 people have explained this across many threads, and you still don't seem to acknowledge it.

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".

Several people have claimed that. I dispute that claim because that's not what I see in the memo.

> 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.

> Several people have claimed that. I dispute that claim because that's not what I see in the memo.

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.

> It matters little what you see in the memo.

You don't care what the memo actually says? Then what's the basis of your opinions on this matter?

I generally support the rule of law, freedom of association, and due process.

He didn't say it doesn't matter what's in the memo.

He said it doesn't matter how you interpret the memo.

If you want to convince me, show me the evidence from the memo.

Throughout this discussion I mostly see people stating their own opinions with nary a quote from the actual memo.

It sounds like you are saying the law and precedent is good. You just disagree with their interpretation of the facts in this particular case. Not everyone in a scociety can come to a consensus on every issue. That’s we have the court system decide.

If we have a legal right to discuss something at work, we should also have a legal right to a science-based discussion of that topic.

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.

I think you're still not getting it. You don't have the legal right to discuss things at work without termination. Blanket federal employment law says that there is a powerful presumption in favor of the employer when terminating employees. They can fire you for what you say. They can fire you for dying your hair the wrong hair color. They don't need a good reason. You need a good reason if you're going to contest a termination.

The NLRB referred to some things employees do have a legal right to discuss without termination:

> 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.

The Advice Memo was signed and attributed to a 30-year veteran of the NLRB, and the content of the memo was signed off on by the NLRB's GC, who is a Trump appointee. They disagree with you.

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