The National Labor Relations Act (“NLRA”) makes it unlawful to terminate an employee who engages in concerted, protected activity, which generally means that you can say, object and complain, and offer suggestions to your employer without fear of termination of employment or other adverse actions so long as your conduct is in the mutual aid and protection of your co-employees and relates to the terms and conditions of employment. But this protection has limits. Even though you can act rude, use curse words, and say and do some pretty aggressive things and still be protected under the NLRA, some words and some conduct cross the line and are not protected. One Google, Inc., employee found this out the hard way.
The General Counsel for the National Labor Relations Board (“NLRB”) recently issued an Advice Memorandum, finding that Google did not violate the NLRA by terminating an employee who objected to the Company’s diversity and inclusion initiatives. The employee filed a charge with the NLRB challenging his termination. The employee stated he engaged in concerted, protected activity by objecting to the diversity initiatives, and he alleged Google fired him for that protected activity.
In this matter, the employee voiced concerns about the Company’s diversity inclusion initiatives in various internal forums where other employees could comment. He also circulated a memorandum articulating his concerns. On its face this all seems like protected activity under the NLRA, but the General Counsel disagreed based on portions of the employee’s memorandum, which included the following gender stereotypes:
- Women are more prone to “neuroticism,” resulting in women experiencing higher anxiety and exhibiting lower tolerance for stress, which “may contribute to . . . the lower number of women in high stress jobs”;
- Men demonstrate greater variance in IQ than women, such that there are more men at both the top and bottom of the distribution. Thus, [the Employee] posited, the Employer’s preference to hire from the “top of the curve” may result in a candidate pool with fewer females than those of “less-selective” tech companies.
Google terminated the employee for violating its policies on harassment and discrimination when it reviewed the employee’s memorandum. Google’s Human Resources manager prepared talking points in advance of the termination. These talking points stated:
“Your post advanced and relied on offensive gender stereotypes to suggest that women cannot be successful in the same kinds of jobs at [the Employer] as men. . . . I want to make clear that our decision is based solely on the part of your post that generalizes and advances stereotypes about women versus men. It is not based in any way on the portions of your post that discuss [the Employer’s] programs or trainings, or how [the Employer] can improve its inclusion of differing political views. Those are important points. I also want to be clear that this is not about you expressing yourself on political issues or having political views that are different than others at the Company. Having a different political view is absolutely fine. Advancing gender stereotypes is not.”
The General Counsel agreed with Google that portions of the employee’s memorandum contained unprotected activity relating to offensive gender stereotypes. The General Counsel determined that the Company had acted on those unprotected portions of the memorandum, not the protected portions. There is, of course, a line that an employee can cross in voicing concerns and objections that are otherwise lawful, and in this Advice Memorandum, the General Counsel declared that this employee crossed that line in articulating gender stereotypes.
Suffice it to say, be careful what you say in the workplace, because while there are protections for employees who voice concerns under the NLRA, those protections will be lost if you cross the line into unlawful or unprotected activity, as determined by the General Counsel or other decision makers.
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