A Google engineer, dismayed by the company’s pro-diversity policies, penned a 10 page memo outlining detailed and controversial criticisms. It leaked, and he was fired. Was he doing something harmful, or righteous? And, if he were in Australia, would his sacking be ruled an unfair dismissal?

Since HRM originally reported on the memo, its author, Google engineer James Damore, based at Google’s headquarters in Silicon Valley, California, has filed a complaint with the US National Labor Relations Board and has claimed that the tech giant smeared him.

“It was only after it got viral that upper management started shaming me… it would be career suicide for any executives or directors to support me,” he told Bloomberg.

The memo was originally published on Google’s internal social media and was then leaked to the public. The memo has a lot in it, but the most problematic assertions have proven to be those centered around the idea that biological and cultural differences between men (particularly their “higher drive for status”) and women (including the gender’s propensity towards “neuroticism” and “agreeableness”) play a big role in the pay gap and lack of female representation in tech.

The reason given for his firing by Sundar Pichai, CEO of Google, was that portions of Damore’s 10-page memo “violate our code of conduct and cross the line by advancing harmful gender stereotypes.”

Opinions on the story have been polarised. Some say Damore has been unfairly punished, while others think the decision was just. To further discussion, HRM asked a legal expert for his opinion on whether Damore has an unfair dismissal case, and an industry professor on what she thinks of the story’s ethical considerations.

Where does the law stand?

There’s differences of opinion as to whether Damore’s case has a chance of success. The US has less labour protections than Australia, and their legal principle of “at-will employment” means any employee can be dismissed for any reason, without warning (with only a few exceptions). Damore would have to find robust evidence of company wrongdoing to win at trial.

But what if he was in Australia, would he have a better chance?

HRM asked Aaron Goonrey, partner at Lander & Rogers’ Workplace Relations & Safety practice, about what Damore’s unfair dismissal case would look like if it were taking place here. He explained the Google employee could potentially try to claim:

1. That his dismissal constituted unlawful discrimination;
2. or adverse action because he exercised a workplace right.

One of the difficulties Damore would have for each of these claims would be establishing that the intent behind his memo aligned with either. Unlawful discrimination would require him to prove that Google dismissed him because of, for example, his race or gender.

He’d have similar difficulties If he wanted to claim he was exercising a workplace right. As Goonrey wrote for HRM recently, “Cases on the subject also suggest that a complaint or inquiry has to be about something that would have a direct and tangible impact on your employment.”

“It’s not evident why he wrote it. I would ask, why were you complaining, how does it affect you?” Goonrey says. “If it was his intent to improve Google, that’s not at all clear by the way in which he did it.”

What’s more, Google’s defence would be quite strong, Goonrey says. “Google’s case would be that Damore unreasonably, and maybe unnecessarily, maligned the company and its reputation. The more appropriate way to raise these complaints would be via his manager, or HR, as opposed to a ‘Jerry Maguire mission statement.’”

For organisations looking to prepare and protect themselves for a similar occurrence, robust code of conduct policies are a must. Employee rights to express opinions about the company shouldn’t be discouraged by these policies, rather they should be tempered, recommends Goonrey.

What about the ethics?

“It’s about free speech, as far as I’m concerned,” says Petrina Coventry, Industry Professor at Adelaide University.

Allowing employees to express their opinions on the direction of the company, and the effectiveness of its programs, is widely seen as a good thing. But, from an ethical perspective, free speech is often weighed against Mills’ harm principle. Is the benefit of Damore’s right to express his opinions in the manner that he did outweighed by the damage it causes to his colleagues and Google’s reputation?

Part of the problem for Google, Coventry argues, is to some extent they set themselves up for reputational harm. “I really object to large multinationals who are held on a pedestal for being best-in-class on issues, such as diversity, despite poor statistics,” she says.

Since 2014, the first year Google released a diversity report, the company has been making efforts to be seen as actively moving towards a diverse and inclusive working environment. Just last month the Mercury News had a story about a Google engineer and instructor in its new diversity program. In the meantime, their most recent diversity report showed that 75 per cent of its leaders globally are men, just two per cent of its employees in the US are black, and only 20 per cent of its tech employees are women.

Companies like Google tie their market value to the perception of their brand, and so spend money getting their programs great publicity. Their efforts backfire because when something goes wrong “they fall from a great height,” Coventry says.

And what about Damore’s decisions? Was the company’s social media page the right forum for him to express his views? Coventry argues that for him, as someone who works in a tech company, it might have been the most natural venue. But, she thinks, “his choice of words have let him down”.

Though sections of Damore’s memo offer positive suggestions for ways to increase diversity within Google, his decision to stress the biological differences between the genders, and to suggest Google’s diversity programs are both “extreme” and “authoritarian” (despite the fact the company is still predominantly male and white, a fact he doesn’t mention) made it easy to view him as a bigot.

“This is the path that is dangerous, people react badly to words that incense them. Using ideological words can cause a backlash,” Coventry says. She ties this to wider social issues, where alternative views from both the left and the right often cause a furore designed to silence any divergence from mainstream views.

So from a legal perspective Damore seems unlikely to gain much traction, but what about from an ethical one?

“Does he have a case where the punishment doesn’t fit the crime? Yes. He could argue that they have damaged his reputation by overreacting to this memo,” says Coventry.

What do you think? Let us know in the comments.

If you want learn more about unconscious bias and how to overcome it, why not check out AHRI’s custom learning course, and its managing unconscious bias toolkit.