Many have read recently about Google firing one of its engineers after he circulated an internal memo which, among other statements, claimed that men are genetically more predisposed to working in the tech industry than women. The statement is a part of a ten page memo that condemned Google’s diversity efforts.
In a statement by Google CEO Sundar Pichai, the employee was fired for “perpetuating gender stereotypes.” Specifically, Pichai noted that the statements were inappropriate because they advanced “harmful gender stereotypes in our workplace.” Pichai said “[T]o suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK.”
While many disagree with the employee’s opinion, doesn’t he have the right to think that way, and maybe even express his opinion? Isn’t freedom of speech (and therefore freedom to have one’s opinion) part of the foundation of this country? So, can an employer actually fire someone for having, and expressing, an unpopular opinion, especially when it is about the operations of the employer? Is the statement made by the now former Google engineer any different than an employee making pro-gun ownership remarks to decidedly anti-gun ownership co-workers, for instance?
First of all, Google is a private employer and generally, private employers have the right to freely regulate the behavior of their employees. This would include the right to prohibit statements by employees that create disruption or disharmony in the workplace. It’s like your mother told you, “you can think what you want, but you can’t talk like that here.” Literally, employees have the right to hold their own opinions but don’t have unfettered right to express them. This is especially true in this case as Google has a policy which requires “each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.” It is also easy to imagine the significant backlash and disruption caused by the employee’s memo. In short, the First Amendment’s protections of free speech only prohibit government censorship of speech. While Google does sometimes feel like Big Brother, they are just another private employer, free to regulate what their workers say and do on the job.
Public employers have greater responsibility to protect an employee’s First Amendment right to free speech. But, as we have written about here on many occasions, that right is subject to some restraints as well. Primarily, a public employee’s statements that amount to general personal gripes or comments about their job or co-workers which are not remarks related to issues of concern to the public, usually do not enjoy First Amendment protections. Moreover, even speech that might otherwise be constitutionally protected can lose that protection if the comments result in significant disruption to the employer or its operations. So, even if the Google engineer had been a public employee, it is questionable whether his derogatory remarks about female tech workers would have been protected by law.
Given the bad press that some industry giants like Google and Uber have received recently about their internal operations, and given that the Google employee who made the remarks was an engineer for the company, giving his remarks more weight in the workplace, it’s no wonder that he was discharged. Employers have a right to protect the image of their organization, especially with the existence of a policy that prohibits bias in the workplace. Employees who make emotionally charged statements such as the former Google employee did, do so at their own risk. But employers should note that policies such as Google’s “each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination” should be applied uniformly. It’s okay to have a policy like this, but when enforced only against employees who reflect unpopular opinions, can lead to other problems, as the employer might, in doing this, end up treating a group of employees, who themselves share a protected characteristic differently than others.
