
Prof. of employment law: 'it may be illegal for Google to punish that engineer' - kushti
https://www.cnbc.com/amp/2017/08/07/it-may-be-illegal-for-google-to-punish-engineer-over-anti-diversity-memo-commentary.html
======
wolfgangK
I hope that he also sues media outlets for slander. To sum things up :

    
    
      - fairness & lack of prejudice wrt minorities/women : goal
      - minorities/women % in the workforce : metric
      - diversity hiring : https://en.wikipedia.org/wiki/Campbell%27s_law because https://en.wikipedia.org/wiki/Berkson%27s_paradox .
      - without diversity hiring, differences in women vs men applicants pools, which can be explained by differences in *distributions* of interests, have no impact on distribution of skills in the workforce
      - women are talented enough so that they just need to be *attracted* (e.g. better work/life balance) rather than pity-hired
    

This is my takeaway from the "screed". How could it be framed as «anti-
diversity», much less «alt-right» ? How could saying that «women are, _on
average_ more people-oriented and men are more thing-oriented» be framed as
«women are inferior, biologically incapable of coding» ? I hope that people
get punished for such a dishonest character assassination !

~~~
2muchcoffeeman
I just finished reading it. I agree with some of the points, particularly:
"Don't alienate conservatives." I consider myself left leaning. But if we are
going to talk about tolerance and acceptance, then you have to attempt to do
that across the board.

The entire manifesto seems like a first draft. I don't think presenting gender
differences as biologically based was even necessary to support his main
points. Even if on average genders exhibit different preferences, I'm still on
the fence as to why.

And I can't tell which part was so offensive that people had to take time off
and this guy needed to be fired.

~~~
wolfgangK
I consider myself as leftist as possible with a functioning and informed
brain. Yet I know that "left leaning" and "right leaning" are mostly biases
that we use to orient ourselves in a world too complex to be fully understood.
EDIT : I think that everybody should read
[http://righteousmind.com/](http://righteousmind.com/) from J. Haidt.

Wrt to whether differences are biologically based or not, I'm convinced that
one day, we'll look back at the Nature vs Nuture debate like we do with the
Particule vs Wave debate for light. The sooner the better.

As to which part was so offensive, it's akin to wonder which spells got the
witch burning at the stake. Witnessing so many smart and compassionate people
join the angry mob really scared me : I have no reason to believe that I would
not do the same if the right buttons were pushed.

------
matt_wulfeck
I can't help but agree with almost everything he said about general traits in
men. They seek esteem over most everything else, and are competitive by
nature. And that explains at least part of the reason they're drawn to
leadership positions in companies.

Of course I'm not going to get fired for saying _that_ publicly.

~~~
DonaldPShimoda
Is it not possible that men are more competitive and seek leadership positions
because most leadership positions are already held by men? Looking upwards and
seeing people like yourself would be encouraging — it says "You can do this!"
Modern society has built an image of men becoming successful, and so in a
self-fulfilling prophecy the society's leadership positions are dominated by
men who were told they would end up there.

I don't think there is a _natural_ (i.e. biological) imperative that drives
men and women significantly differently in this regard. It seems to me to be
primarily caused by societal expectations which are enforced starting from a
young age.

~~~
anjc
> I don't think there is a natural (i.e. biological) imperative that drives
> men and women significantly differently in this regard.

Yep, the links between testosterone and hierarchy/drive/dominance have been
established for decades. Its effects can be examined between males, and across
multiple species, but there's actually no natural imperative which drives men
in this regard. Come on man.

~~~
nippples
You gotta understand, those _literature students_ who learned _critical
theory_ know far better about these topics than _biologists_ and
_psychologists_.

Of course hormones mean nothing. You think it's adrenaline making your heart
beat stronger when you think you're in danger, or is it really social
constructs all the way down?

There isn't such as thing as true objectivity.

We shouldn't even aim for objectivity.

War is peace.

~~~
DonaldPShimoda
I kind of resent the way you say "literature students" as though (1) you think
it's valid to assume from my comment that I'm a literature student (I'm not)
and (2) that somehow literature students in general are all the way you
describe (they aren't).

Maybe in the future consider adding to the discussion constructively instead
of resorting to silly (baseless) hyperbolic rhetoric.

------
tim333
"We’re told by senior leadership that what we’re doing is both the morally and
economically correct thing to do, but without evidence this is just veiled
left ideology that can irreparably harm Google."

Seems to me that publishing a "manifesto" in a company saying the senior
leadership are bozos is a reasonable grounds for firing.

~~~
drewrv
Seriously! I have strong opinions about the role of women in our industry and
society, as does pretty much everyone.

But ignore the gender/culture argument and replace diversity with "Foo". The
stated goal of the organization is to increase Foo, from top to bottom, from
HR to engineering. What do you think will happen if you publish a letter
saying Foo is overrated? What will happen if you make getting Foo harder for
them? What will happen if you semi-publicly argue against increasing Foo?

~~~
Cookingboy
Actually that's not what the author of the memo advocated.

He did not say Foo was overrated, he said he supports Foo, but he questions
the effectiveness of the current company methodology in increasing Foo. He
thinks there are other root causes for why Foo is not as high as they want,
and he proposed other ways to increase Foo.

He was doing a good job by all means, but then people categorized his point of
view as anti-Foo when he was simply against the current ways of increasing
Foo.

~~~
meowface
Exactly: "pro-diversity" is not necessarily incompatible with "maybe we should
reconsider affirmative action-esque initiatives".

I disagree with many things in the document, but, by all accounts, the
employee had no issues with a diverse workplace. I think the case he was
trying to make is that maybe the lack of representation of women in
programming and similar fields can't entirely be explained by sexism or
discrimination or bias, and that if it's true that women are on average less
interested in things like programming, then it doesn't necessarily make sense
to make a commitment to, say, "double the amount of women we hire this year"
(not a real example; just hypothetical). The pool for women interested in the
job may just be lower in numbers even when controlling for all social and
cultural factors.

Of course, the science on that is still far from conclusive (and many of the
"scientific" facts he cited sound dubious), and this absolutely can't be
extrapolated to suggest that female programmers who do work at Google or other
companies _are_ less interested or are somehow less competent. I don't think
the author tried to make that claim at all, nor did he suggest that sexism and
bias _wasn 't_ an issue contributing to the gender gap or an issue that
shouldn't be stamped out, but a lot of people (and the media) seemed to draw
those conclusions after reading the document.

------
mpweiher
In Germany it sure as hell would be.

And since they appear to have used the willful misrepresentation of what he
wrote as the reason, at least publicly, it might even be illegal in the good-
ole no-worker-protections-for-U-S-A.

~~~
gizmo686
>And since they appear to have used the willful misrepresentation of what he
wrote as the reason.

Wouldn't this help Google's case. Employers are allowed to fire at will
employees for any reason, or no reason, except for specific reasons specified
in law.

As far as I am aware, there is no law against fire an employee for being
publicly _accused_ of engaging in political speech (or whatever other
behaviour Google wants to cite). The laws are only speak to fireing in
retaliation for actual conduct.

Of course, this might be one of those cases where the courts take a more
holistic look and determine that the laws also protects employees accused of
the behaviours, regardless of if they engaged in them. Also, while the memo
was misrepresented, the misrepresentation is not so egregious as to make this
a slamdunk arguement in this case, even if it were an accepted legal theory in
general.

~~~
mpweiher
Good points.

My thinking was that they _specifically_ said CoC violations and then used
misrepresentations of his writings (writings that were, AFAIK, specifically
encouraged) to justify those CoC violations.

Had they just said "I no longer like your nose", that would probably have been
safer, but of course not effective PR and I am pretty certain that getting rid
of him was a pure PR exercise.

Heck, they might even have given him some hush money in order for that not to
happen.

And yes, this is all mostly uninformed speculation :-)

------
pkilgore
He's a professor of law...at a business school.

I'd try to evaluate the strength of his legal argument, but he does not
cite...anything.

My guess: He's trolling for clients.

~~~
rocky1138
You may have read the version, widely circulated, with the citations stripped
out. The original includes citations.

~~~
pkilgore
Could you point me to that?

~~~
milcron
Most of the "citations" are inline links to Wikipedia.

[https://assets.documentcloud.org/documents/3914586/Googles-I...](https://assets.documentcloud.org/documents/3914586/Googles-
Ideological-Echo-Chamber.pdf)

~~~
pkilgore
Thanks, but I've read and written about that idiot's manifesto too many times
to count at this point.

I'm looking for citations for the lawyers' analysis of employment law
violations here.

------
erentz
I am almost certain that they gave this guy a termination agreement in which
he agreed not to sue Google, and in return would be given a _massive_ golden
parachute. Google felt they needed him gone for business reasons. But of
course they had no legitimate reason to fire him and he could sue if they did.
If that's not the case, expect a lawsuit from him shortly.

~~~
johan_larson
If he is, as the following article says, "considering legal options," then he
wasn't given an exit package. Or I suppose he could have been offered one but
turned it down.

[https://www.theguardian.com/technology/2017/aug/08/google-
em...](https://www.theguardian.com/technology/2017/aug/08/google-employee-
fired-diversity-row-considers-legal-action-james-damore)

~~~
erentz
Oh, wow in that case if I were him I'd probably sue. This termination will
sadly haunt him and he will miss out on many job opportunities because of it.
Even if you disagree with what he wrote, that's a huge price to pay for trying
to have a discussion around making his workplace better and what he perceives
fairer.

~~~
HelloMcFly
This case isn't cut-and-dry. Much of that memo I disagreed with but generally
found innocuous. However, there were notable aspects of that memo that could
be argued to have created a hostile work environment for different groups were
they to be forced to work with or for that engineer. It's clear that, in
aggregate, he believes certain groups naturally more "fit" for the work. Now,
if you're a woman who has to work with or for him, what do you feel? You
likely feel that your capability is more in question, that you have to prove
yourself more than the men on the team, and that this person you work next to
(or for) starts out with an assumption that you're less capable.

Comments and behaviors that make a protected class feel like that, even if
made as "jokes" or "facilitators of open dialogue", are not permissible.

It's not a cut-and-dry case. I wouldn't bet on a lawsuit either way, excepting
the fact that Google's lawyers are probably the better lawyers in a legal
tussle.

~~~
ng12
> You likely feel that your capability is more in question

I don't really understand this. It's not like female engineers at Google had
never noticed how few of them there were until this memo was published.
Obviously you're a deviation from the average in some way if you're one of a
few X in a large group of mostly Y.

~~~
HelloMcFly
Or perhaps you're a product of tokenism, as this memo implies may often be the
case.

------
yladiz
I'd be surprised if there was a lawsuit. It's really easy to argue that this
memo is disruptive to the workplace and Google had grounds to fire him. You
can have 5 reasons that are illegal to fire someone and 1 reason that is legal
and you can just justify it with that one reason.

------
mywittyname
I'm surprised they didn't just move him to a worthless team and let him
languish until he moved on.

Perhaps generating training data for AI-based toilet scrubbing robots.

~~~
matt_wulfeck
You see the lose-lose situation they're in? The SJW are demanding his head on
a pike, yet Google knew that if he sued he'd probably win.

In the end they washed their hands of him.

~~~
drewrv
They'd rather deal with one lawsuit from him than the hundreds from every
person who has ever worked with him that isn't a white male.

~~~
johan_larson
Well now, there's a reason to hire folks like me. "Dude, I'm an able-bodied
middle-aged cis het white man. If you ever get tired of me, you can just show
me the door. I've got no recourse. Legally speaking, this is as safe as it
gets."

~~~
matt_wulfeck
And if they fire you then their diversity quota actually improves.

~~~
johan_larson
See? See? Staying or going, I'm an asset to the company.

------
tiredwired
Seems like they should punish the leaker just as harshly has the engineer.

~~~
nikdaheratik
Why? I don't think it's likely that the engineer's essay of nonsense was part
of the company's next world beating invention, which means publishing it isn't
part of any NDAs.

~~~
pyroinferno
Because it led too mass-hysteria and a crap load of negative press from both
liberals and conservatives. Why would you want to have someone who would sink
the company to get someone that they don't agree with fired as an employee?

------
matt_s
Part of his case may be the details of who he sent this manifesto to. If it
went 'viral' inside of Google, is that his fault?

------
Caveman_Coder
If you're conservative at Google and tired of getting muzzled and want to help
his case you could do the following:

1\. Go to Memegen

2\. Find a meme made by a liberal (check around the time Trump was elected)
that is denigrating or demeaning towards conservatives

3\. Leak the photos and ask Google to fire them for their "harassing" views

4\. If they don't, they are selectively enforcing their own "rules"

5\. Point out their hypocrisy

~~~
grizzles
What if they did that stuff on their own time, do they still deserve to be
fired? Because he didn't.

~~~
Caveman_Coder
Okay...so he did it on company time...I can tell you most of the memes on
Memegen were probably made on company time...so let's say they were made on
company time, in the spirit of fairness and reciprocity, should the anti-
conservative post authors be fired as well? They might have made a lot of
conservatives uncomfortable and feel like they were being harassed.

------
alexwebb2
I don't really understand how firing him is controversial.

He wrote a pathetic, juvenile manifesto that served only to reinforce and
perpetuate gender stereotypes. To me, that absolutely falls under the umbrella
of "creating a hostile work environment". He'd be a major liability if they
_didn't_ fire him.

Companies are under no obligation to allow their employees to distribute their
own ill-conceived manifestos that slam the company for its policies and
promote a sexist view of the world. That's insane.

~~~
Cookingboy
How was the memo pathetic or juvenile? He sourced all of his claims and
himself has a Ph.D in Biology. What gender stereotypes did he perpetuate? In
fact he specifically called against stereotypes.

It sounds like you didn't read the memo at all and only bought in coverage by
fake news sites like Gizmodo.

Yes, the term Fake News actually applies here.

~~~
alexwebb2
I did read the memo. It was extremely juvenile, and reminded me of the racist
drivel that gets pushed on Facebook. Mixed into the stats he cites is a whole
lot of hand waving and unsound conclusions, and it's clearly meant to push a
sexist viewpoint.

~~~
Cookingboy
Ok, can you be more specific about which parts you find to be racist or
juvenile? I have read the memo as well and I have found it to be civil and
well written and did not see anywhere it pushed for some kind of sexist
discriminatory agenda.

Where do you think he did hand waving? Which conclusions of his do you think
was unsound? Which particular statements of his you think was clearly meant to
push a sexist viewpoint?

