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James Damore, the Google engineer fired over an essay he wrote criticizing the company's diversity policy, will face an uphill battle arguing that his dismissal was illegal under the National Labor Relations Act, the main federal law covering union activity, legal experts note.
However, the software engineer's argument to the National Labor Relations Board that his memo was a discussion of workplace conditions covered by the NLRA isn't crazy either, especially since the law was significantly broadened during the Obama administration.
The question before the board, which enforces the NLRA, is whether the memo amounts to what the law terms "concerted, protected activity." That is, was Damore attempting to engage employees in an effort to improve their working conditions at Google? The board has long used a broad definition of what the term "activity" means, expanding it in recent years.
"If it is true that he had discussions with his coworkers about the memo and this extended to talking about the working conditions at Google and the company was aware of these discussions, if these two factors were present, then he may have a case," said Steve Bernstein, a labor law attorney with the management-side firm of Fisher & Phillips.
That appears to be what Damore is arguing in a complaint filed with the NLRB. Damore was fired by the tech giant Monday after a 10-page memo he wrote became viral on the web. In the essay, Damore argues, among other things, that "differences in distributions of traits between men and women may in part" explain disparities in hiring and pay between genders in the technology industry and called for "an open and honest discussion about the costs and benefits of our diversity programs." Google said it fired him because he "advanced incorrect assumptions about gender."
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