When employers like Google insist on ideological compliance, it’s a slippery slope
The Google-Damore situation may be a harbinger of the type of attitudes that could move north of the border
By Howard Levitt
James Damore believes that men are, in the main, biologically more suitable to IT roles. He also believes that by promoting gender diversity, Google has compromised its competitive edge and will end up with a weaker work force.
He wrote a memo attacking the Silicon Valley culture of political correctness, noting that “ideological diversity” is far more important than diversity based upon gender. Asserting that men were inherently more attracted to IT then women, he argued that we should “stop assuming that gender gaps imply sexism.”
Damore cited several studies that suggest that biological differences in men’s and women’s brains lead to differences in interests and behaviour, which is why men tend to be drawn toward STEM fields. He urged an honest, deeper discussion of Google’s efforts to diversify its work force. Hardly unreasonable.
In response to concerns from Google employees, the company’s vice-president of diversity, Danielle Brown responded in an internal memo, saying: “Part of building an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions.”
But when a public backlash began to gather as the memo and Google’s response went public, the company fired Damore, with CEO Sundar Pichai saying that “words matter” and that “to suggest a group of our colleagues are less biologically suited to that work is offensive and not OK.”
Damore is suing for wrongful dismissal.
In Canada, legally, it would not matter whether his view is correct. But is it entitled to legal protection? Would Damone’s lawsuit succeed in Canada?
There is no right to free speech in the private sector, which the Charter does not cover, and human rights legislation does not protect expression of opinion.
An employer can fire employees for virtually any reason (or no reason), as long as it pays appropriate compensation for wrongful dismissal.
But would Damone’s behaviour be cause for discharge such as to permit dismissal without compensation?
Unfortunately, it could be. If Google had a code of conduct specifically prohibiting comments such as his and makes a violation of that code cause for discharge, its case would be stronger. Google would also have to show some damage to its interests.
Canadian employment law is quickly evolving such that any conduct — even off-duty — which the employee should know is injurious to the employer, whether it’s throwing beer bottles on baseball fields or screaming obscenities at female reporters on live TV, can be cause for discharge.
If Damone’s comments lead to employees resigning or difficulty with Google’s efforts to recruit women, his comments could potentially fall into that category.
Google’s reputation as a place where diverse opinions are tolerated, as suggested in Brown’s memo, could make it more difficult to argue for ideological compliance. In this particular case, Damone would likely succeed if this were a wrongful dismissal case in Canada.
But more broadly, there are real risks to the law developing in this fashion.
It is one thing to make illegal conduct, even unrelated to the job, cause for discharge because of the impact on an employer’s reputation. It is another to enforce ideological conformity and suppress political dissent or disagreement with an employer’s direction, particularly when the opinion is expressed respectfully.
Free speech is not as engrained in our culture or constitution as it is south of the border. That being the case, decisions as to whether employee dissent will be cause for discharge will be made by judges not the legislature.
They look in part to public policy in making those decisions and can sometimes be affected by political currents.
It is obviously egregious for comments such as Damone’s to be cause for discharge in the workplace. But unless legislatures intervene and add expressions of opinion to human rights legislation, the result will be uncertain as to whether comments such as Damore’s could be cause for dismissal in Canada.
Although titularly human rights legislation could change the law and enshrine a right to free speech, the sorry history of human rights in Canada, which has done more to stultify than promote free speech, puts me in opposition to such a statutory change. As well, human rights administrators tend to be politically correct zealots. I would not trust Damore to their predations, any more than I generally would my clients.
The Google-Damore situation may be a harbinger of the type of attitudes that could move north of the border. As political correctness moves from campuses to workplaces, employees with dissenting views are increasingly less protected.