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Google Memo Writer Would Likely Lose Lawsuit Against Google

Former Google software engineer James Damore was fired by Google for writing a memo titled “Google’s Ideological Echo Chamber” that critics have labeled as “anti-diversity.” Damore’s memo was originally on a private internal company discussion board, but was quickly shared outside Google.

Google, currently under investigation by the Department of Labor for paying women less than men, has distanced itself from Damore’s memo, which claims that numerous differences between women and men are biological. Google’s new Vice President of Diversity, Integrity and Governance, Danielle Brown, has released a statement that the memo is “not a viewpoint that I or this company endorses, promotes or encourages.”

Damore says he is considering bringing a suit against Google for his recent dismissal, though exactly what claims he thinks will be successful in court is unclear.

GoogleWhat about Free Speech?

It’s a common misconception that free speech protects everyone against termination or discrimination. The First Amendment, and the ban against restricting free speech, is constitutional law. The Constitution only applies to governments: the federal government, the states, and local counties. The Constitution does NOT apply to private corporations. If Mr. Damore was terminated for writing his memo while working for California’s Department of Motorized Vehicles, he would have a strong free speech case against California. However, since Damore’s employer, Google, was a private employer, the First Amendment does not apply to this case.

However, while Google may prevail legally, this is a political, employment, and public relations nightmare that most major corporations don’t want to deal with. Google has built a reputation and social philosophy on diversity. Most conservative platforms and publications this week have already pointed out the hypocrisy: what’s the point in having diversity in race or gender if your team’s thoughts and viewpoints aren’t diverse? Diversity as a value is superficial if the only diversity celebrated is the person’s skin or appearance.

Still, this is a political question that will only affect law if public opinion changes enough.

Is There a Discrimination Suit Here?

Employment law is premised on two ideas: 1. that employers (and employees) may terminate “at will” an employment relationship for any reason other than an illegal reason and 2. One of those illegal reasons is discrimination based on a specific personal trait, such as race or gender. Notably, political ideology is not on the list of protected traits in the Civil Rights Act. This means that while a private company cannot fire a woman for being feminine, as that would be gender discrimination; the company could fire that woman for being feminist if she spends her time in the office talking about women’s rights issues.

Damore could attempt to bring a case against Google under the Civil Rights Act by arguing that Google discriminated against him for being a man or for being white. However, that claim would be incredibly hard to support. Google could just claim that it fired Damore because it didn’t like the memo he wrote. There’s nothing about the memo itself to suggest that the author was 100% a white man. Google does not have a history of discriminating white men and it doesn’t have a hostile work environment towards white men. In fact, given that white men make up the majority of the company, it’s a pretty safe assumption that Google’s problem with Damore is what he wrote rather than his race or gender.

What about California Law?

Although the federal Civil Rights Act doesn’t offer any protection for discrimination based on politics, California employment law does protection against discrimination based on “political activities or affiliations.” Although this phrase is somewhat vague, there is some consensus on what kinds of activities are protected. Employers cannot restrict or retaliate against their employees for what they do outside of the office. Employers cannot terminate or demote employees simply for having opposing political views or affiliations.

Damore potentially has a case based on this claim, as he was fired for expressing his views on gender and for his political views. Damore wrote a reasoned memo on what he thought were problematic political biases and Google responded by firing him. However, Google could argue that he wasn’t fired for his political affiliations or his activities, but for creating a hostile work environment. According to Google, Damore’s views would make the women at their offices uncomfortable. This is a real issue for Google, because promotions are based on peer review; Google cannot trust that Damore will be treated fairly by women or that he will treat women fairly after his memo ended up in the evening news.

Is Damore a Whistleblower?

Another route Damore could try is claiming to be a whistleblower. Affirmative action programs are often viewed as discriminatory against “majority” groups like white men. Since employment law prohibits discrimination based on race or gender, Google’s plans to admit only women into certain programs would be potentially discriminatory. If that is true, then Damore is a whistleblower against such discrimination.

Of course, claiming to be a whistleblower only works if Google is breaking the law and Damore is reporting it. Affirmative action programs have survived this long because courts often do not consider them illegal discrimination. The racism and sexism that employment law protects against is based on animus – hostility towards a certain group. Proponents have often won by arguing that their discrimination is based on helping certain groups rather than putting down other groups. Affirmative action is not about being anti-men, but pro-women. The fact that there are only two genders and that one is automatically disfavored if the other gender is favored doesn’t often enter into the analysis.

A Sign of the Times

Ironically, the Civil Rights Act that an employment attorney might try to invoke is premised on the very principles that Damore was writing against. The Civil Rights Act is premised on the idea of protecting race and gender. Granted, most employment suits are brought to protect specific races and genders, but the overall focus is on a person’s surface traits instead of viewpoint discrimination. At this time, there is simply no legal framework Damore could use to receive compensation for his termination.

This is a real shame though. Damore’s memo was articulate and very persuasive. It had a clear thesis, its premises were supported by examples, and it pinpointed specific problems and offered solutions to the problems it identified. To be sure, Damore himself makes a number of assumptions and has a number of biases in his own memo. Still, Damore makes a number of points that are very interesting and engaging. As a hiring manager, I did notice that men were more likely to ask for and negotiate for a higher salary than women. Whether or not that discrepancy exists because of biological differences is up to debate, but that is the point. Google should have engaged in that debate instead of firing the author of that debate.

Google has failed to live up to its business values and philosophies by terminating Damore. But the damage is not limited to Google’s reputation or bottom line. It is rare today to find thoughtful and intelligent political discussion in the public sphere; last year’s presidential election is an example of exactly how far we, as a nation, have fallen in that regard.

Google had a perfect opportunity to engage in the kind of frank debate that the public desperately needs. Google dropped the ball. Small wonder then, that a brainless sound bite machine like Donald Trump should prevail in today’s political environment, when even Google derides an opportunity for outstanding debate. I hope Damore finds a worthy opponent to continue his discussion. In the meantime, I will mourn for our public discourse.

Fox News and the Pitfalls of Sexual Harassment

Over the weekend, another Fox News host has come under fire for sexual harassment. Fox News suspended Eric Bolling after three women accused him of sending lewd photos. Twitter users were quick to point out Bolling’s hypocrisy by resurrecting a Bolling Tweet from 2011, asking “why would anyone take a picture of one’s junk anyway?”Bolling’s suspension is the latest in a string of sexual harassment scandals that have rocked the network:

To date, Fox News has paid $13 million to settle claims of sexual harassment towards women by its employees. Even if Fox News doesn’t believe in feminism, its shareholders have a significant interest in avoiding lawsuits that result in million dollar payments to the other party. So can a profit minded company avoid these kinds of harassment claims?

Sexual HarassmentChange the Corporate Culture

Given the recent terminations of prominent television hosts and high ranking executives, Fox News probably has a larger issue with sexual harassment than a couple of rogue employees. Critics might be quick to point to Fox New’s political affiliations; how could an organization that defended “grab them by the pussy” not be a hostile work environment? However, most politically conservative organizations (Heritage Foundation, National Review, Federalist Society, etc.) don’t have the same sexual harassment problems that Fox News has right now. Fox News doesn’t have to change its political stances to police its employee’s sexual abuses.

One of the biggest factors is how the organization deals with sexual harassment. If the company settles a complaint and demands the victim keep quiet about his or her allegations, the problem will continue. Likewise, if the company merely transfers the harasser between departments, then the problem with persist. The harasser will feel protected and will continue with different women. The Catholic Church had similar issues for decades, transferring priests accused of sexually molesting boys between different churches while praying that the offending priests would stop if they were moved away from the initial victims.

Another big factor in corporate sexual harassment is failure to publically highlight the issue. Allegations of sexual abuse are often embarrassing for the abuser, the abusee, and the company at large. However, if the company fails to educate its employees about sexual harassment, even if employees know or suspect sexual abuse is occurring, the company will be promoting the behavior. Corporate managers might not condone sexual abuse, but failure to speak up will be read as implicit approval of the harasser’s behavior.

Ditch the Arbitration System

Fox News favors arbitration boards to settle complaints, including them in every employment contract. Although arbitration is a legal way of resolving disputes, companies relying on arbitration to address sexual harassment should use Fox News as a model of how everything can go wrong. Arbitration is best described as an informal trial. Instead of a judge, an arbitrator decides the case. Arbitration usually doesn’t follow the rules of evidence, allowing the arbitrator to make decisions faster and at a cheaper cost than a judge would.

Although arbitration is a reasonable way to settle many business disputes, sexual harassment is not the best issue for arbitration to address. In a normal trial, both parties are assured that the judge will remain objective and will consider the arguments presented by both sides. With arbitration, the arbitrator is often selected by the company itself. Even if the arbitrator is truly objective, employees making serious allegations may not trust the arbitrator to be impartial.

More importantly, arbitrations are not subject to the same rules of evidence. Corporations might favor arbitration as a cheaper alternative, but there is an important rule of evidence that makes trial more equitable for the accuser. In a normal trial, the defendant is not allowed to introduce evidence of the victim’s own impropriety as a defense.  In other words, just because Jane sleeps around with different men doesn’t mean that she welcomes John’s sexual advances. Throwing out this rule of evidence only serves to make arbitration another potential avenue to harass the victim. Even worse, arbitration is binding and appeals are rarely granted, so any decision that the arbitrator makes will be binding.

Arbitration is obviously flawed from the employee’s view, but these downsides also affect the employer. Arbitration can manage a few isolated cases, but if the floodgates open, as they are opening now for Fox News, the outpour will be more than Human Resource and in house counsel can manage. The problem with relying on a system that overwhelming favors one party is that when the other parties no longer have faith in the system, that system will collapse.

Fox News has avoided its sexual harassment claims for decades, but the built up has now destroyed the dam.  Hopefully a change in corporate culture can built a more stable foundation.

Tip Pooling: Department of Labor Reverses Stance on Controversial Practice

In the U.S., tips are an enormous part of how some people make a living. This is because tipping, and a practice of tip credits, is a common way employers can pay less than minimum wage to their employees. Tip pooling is a practice where an employer requires tipped employees to share those tips. Sometimes employers will even require that these tipped employees put their tips in a pool including the “back of the house”-employees such as cooks who don’t get tips. Tip pooling with employees that aren’t normally tipped was made illegal at a federal level back in 2011 after an Obama administration ruling. The ruling was primarily in response to a 9th Circuit ruling that allowed employers to implement a tipping pool including back-end employees if they did not take a tip credit-the credit which allows employers to pay a tipped employee less than minimum wage. The theory behind the DoL decision was that tips are essentially gifts to employees and become the property of that employee when given. While a tipping pool with all tipped employees isn’t a huge issue as they are all contributing, forcing employees to participate in a tipping pool with non-tipped employees is a bit like forcing them to give away part of their tips.

However, just last week Trump’s Department of Labor (DoL) issued a statement reversing this position on tip pooling. This move certainly allows more leeway to employers but has the potential to leave employees normally relying on tips seeing much less money. Once fully enacted, it could even allow an employer who pays their employees minimum wage and doesn’t take a tip credit to outright keep all tips customers give employees.

Tip PoolingThe rule change isn’t going to take effect immediately. While the DoL won’t be enforcing the tip pooling rule, it’s new rules on the practice are expected to take around a year to see light. In some states it won’t take effect at all due to state law (California and New York especially) or case law making the practice illegal regardless of the position of the federal government.

With tipping such a huge part of how some people make a living, as well as something which can leave a misinformed employer in hot water, it’s important to fully understand how our laws on tipping work. Let’s take a look at federal tipping laws so you can best know your rights and protect your business.

Tips on Tipping

Most federal law on tips is fairly well defined and easily explained. However, at a state level things can get a bit more complicated. As usual, the federal standard is a minimum standard that states can apply additional restrictions on top of. There’s too much there in state law to get into in a single article but the most common one to keep in mind is that minimum wage varies from state to state and even city to city, so where minimum wage comes up in the federal laws you can assume the state or city minimum wage where you live applies to this standard.

A tipped employee, those who would normally be easily added to a tip pool, must regularly make more than $30 a month in tips. Where this is the case, under federal law, an employer can pay these tipped employees as little as $2.13 an hour. However, this doesn’t override minimum wage laws. The tips a given employee is given are taken as a tip credit. This credit is put towards the minimum wage. If the wages an employer pays plus this tip credit leave an employee earning the equivalent or more than minimum wage, the employer is in the clear. If this is not the case, the employer is required to make up the difference. For instance, if an employee worked 10 hours at the federal minimum wage of $7.25 and was tipped ten times that wage ($72.50) then the employer would only have to pay that tipped employee a hourly rate of $2.13 because their tips create a tax credit easily surpassing federal minimum wage. Even if the employee only was given $51.20 in tips over those ten hours, the difference between the $2.13 per hour number and the federal minimum wage, the employer could still get away with paying only $2.13 per hour.

As of now, tips are the sole property of the tipped employee who was given the tip–no matter how much they add up to. It is illegal for an employer to require an employee to hand over any part of their tips or even to make an employment agreement with terms requiring that employee to give them some or all of their tips. The exception to this, at least now, is a valid tip pool-pooling tips and redistributing them equally among employees. However, the tip pool is not an exception to the tip credit rules. If the amount you take out of a tip pool leaves you below minimum wage when your hourly wages are added, your employer still needs to make up the difference.

There a few corner cases that change how these general rules work. First, if you work more than 20% of your hours in a workweek on non-tipped duties then an employer cannot take a tip credit for these hours. Instead, they need to pay at least minimum wage for all these non-tipped hours and the tip credit formula is only applied to your tipped hours.

When you tip with a credit card, an employer can take the percentage charged by the credit card company on each sale out of an employee’s tips. However, this reduced amount and not the full amount is what is used as a tip credit when calculating whether tips take an employee up to or over minimum wage. Also, compulsory charges (think required tips when you have a lot of people eating at once) don’t count towards tips received for a tip credit unless the amount is actually given to the employeee.

Finally, as of 1996, there’s a bit of a boon for the high school and college summer workers. If you are under 20 years old, the minimum wage if you work as a tipped employee is boosted to $4.25 per hour in the first 90 days after you start work. The tip credit still only requires employers to pay the minimum wage of where you live, but no matter what tips you earn you’ll always get at least $4.25 per hour.

Change Is Coming, But Not Here Yet

As mentioned above, the changes to tip pooling are not officially in effect yet. However, with the DoL not enforcing the tip pooling rules the only thing stopping employers is state law on the issue. If you make a large portion of your living from tips, you may see yourself being forced to tighten the belt a little bit in the coming days. New York has laws preventing tip pooling with non-tipped employees. California doesn’t allow employers to take a tip credit whatsoever-requiring full minimum wage on top of any tips earned. However, California does allow for tip pooling.

So the big elephant in the room came from the second paragraph of this article-will employers be able to take your tips outright if they don’t take a tax credit? In theory yes, but it’s far too soon to tell. Not only are the laws not finalized, there are enormous employee morale and publicity issues to think about. Even beyond that, the patchwork of state law and the uncertainty of the current DoL’s eventual position on the issue make any decision to take such action incredibly risky for an employer. So for now, it seems unlikely. However, Trump’s DoL has still dealt a blow to the tipped worker. You may still need to prepare yourself to see less out of your tips each month.

Medical Marijuana Use by Off-Duty Employees with Disabilities are Now Protected in Massachusetts

As marijuana has become legalized in more and more areas and manners, more and more rulings have come out saying that this still doesn’t mean an employer can’t fire you for using marijuana. We’ve talked at length about this phenomenon and what it means for you in the past-in fact we’ve dealt with the overruled lower court’s approach to this very same case. The trend in rulings, allowing employers to punish medically prescribe, legalized, behavior done when not at duty for work is a bit of an odd trend. You can imagine the uproar if courts took a similar approach to off-duty drinking of alcohol which doesn’t impact on-duty performance-never mind off-duty use of a prescribed medication.

However, just this last week the Massachusetts Supreme Court has taken a huge step as far as protecting Massachusetts employees based on medical marijuana use. They ruled it was handicap discrimination to fire a woman for using medical marijuana to combat low appetite resulting from Crohn’s disease. Let’s take a look at the facts in this legal first and what exactly the ruling means for the rights of Massachusetts employees and in a broader context.

medical marijuanaThe Firing of Ms. Barbuto

The case deals with one Ms. Cristina Barbuto, a women suffering from Crohn’s disease-an incurable ailment affecting the lining of the digestive tract . Crohn’s causes extreme intestinal discomfort, weight loss, fatigue, and other painful symptoms. As a result of her Crohn’s, Ms. Barbuto had serious appetite issues-losing dangerous levels of weight. She was eventually prescribed medical marijuana for her appetite and was able to once again reach a healthy weight.

Ms. Barbuto was offered a job with a company called Advantage Sales Marketing (ASM). The caveat to this job offer was that she needed to get and pass a drug test. Ms. Barbuto told them she was a legally prescribed medical marijuana patient and that the test would come back positive. She explained the details of her Crohn’s and also told them that her marijuana use was not daily, nor would she use it before or at work. Her typical use was low doses in the evening to improve her appetite before dinner.

The person from ASM told Ms. Barbuto that her marijuana use was unlikely to be an issue but that she would check and follow-up. After follow-up, the same person from ASM confirmed it wouldn’t be an issue.

Ms. Barbuto reported to her first day of work, worked a day without incident, then was contacted by HR and fired her for failing her drug test. When she mentioned she was legally prescribed the medical marijuana she was told that ASM “follow[s] federal law, not state law.” She then sued ASM for handicap discrimination.

The Ruling of the Court

Under Massachusetts law, and in general, it is illegal to fire or refuse to hire a handicapped person because of that handicap so long as they can perform the essential functions of the job in question if the employer makes reasonable accommodations for their handicap. A reasonable accommodation is basically any accommodation that does not cause undue hardship to the employer-usually by being extraordinarily expensive or difficult to accomplish. Once somebody establishes that they have a valid handicap it’s on the employer to prove that accommodations would be unduly difficult.

Under Massachusetts law, Crohn’s disease is explicitly included as a dehabilitating medical condition qualifying one for medical marijuana use. Thus, the Massachusetts Supreme Court felt it was pretty clear that Ms. Barbuto had a valid handicap.

ASM argued that a reasonable accommodation can’t exist because marijuana use of any type is a federal crime. This is a stance that has been successful in a number of states including California and Colorado. However, the Massachusetts Supreme Court felt that even if their drug policy forbids marijuana, ASM had to at least help the handicapped employee find an equally effective medical alternative. This process is a mandatory part of making reasonable accommodations for a Massachusetts employer. Where no equally effective alternative exists, the employer has to prove that the use of the forbidden medication-in this case marijuana-would cause them undue hardship before they can ban the medicine without committing handicap discrimination.

ASM’s argument essentially boiled down to saying federally illegal means the accommodation must be unreasonable and they don’t need to find alternatives. This most recent ruling reversed lower rulings and said no on both counts. The act legalizing medical marijuana in Massachusetts specifically says that patients can’t be denied any right or privilege due to the nature of their medicine. While the act doesn’t require accommodation of using marijuana on the job, partially because federal law specifically punishes businesses which allow drug use during work hours, this wasn’t an issue here as all use was done off-duty.  What’s more, the Court here ruled that the existence of a restriction on on-duty use implicitly allowed for off-duty use.

The Rulings Impact and the Larger Context

The Massachusetts Supreme Court has reversed the lower court and provided protection for off-duty use by employees legally prescribed medical marijuana. However, it’s important to note how specific the ruling is. Any use on-duty is clearly not protected and it is even arguable that if an employer offers to help find alternative medication they are still free to ban medical marijuana outright. Recreational marijuana use is obviously still completely unprotected, legalized or not and off-duty or not.

The ruling bucks the trend towards non-protection, but Massachusetts isn’t the first state to take steps towards protecting medical marijuana use by employees. Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada all protect such use to at least some degree-requiring employers to accommodate use. As marijuana legalization continues to spread at the state level-the Massachusetts Supreme Court noted in their ruling that almost 90% of states have legalized medical marijuana at this point-this tension will continue to grow. If marijuana becomes as commonly legalized as alcohol, questions will certainly start to arise over whether an employer would be able to regulate an employee’s off-duty drinking. The law around marijuana is frankly incredibly unstable as long as it remains federally illegal. For now, the laws will have to keep evolving as a patchwork of inconsistent state law.

Discrimination Protections are Reduced After Missouri Signs Bill to Protect Businesses

Missouri is rolling back employment discrimination protections to protect businesses from frivolous lawsuits. At least, that’s the rationale Governor Eric Greitens would have everyone believe. The new law, SB 43, will go into effect beginning April 28 of next year. Previously, employees in Missouri only had to show that discrimination was one factor in their demotion or dismissal to bring a suit. Under the new law, employees must show that discrimination was “the motivating factor” or primary cause of their demotion or termination. Additionally, the bill would cap the amount of damages that an employee could receive and would restrict such suits to businesses. Employees would not be able to sue individuals, such as their supervisors, for discrimination. The bill applies the same restrictions to housing and public accommodations.

discrimination protectionsThe bill is extremely controversial in Missouri, in part because the sponsor of the bill, State Senator Gary Romine, owns a business that is being sued for alleged discrimination.  The employee in Romine’s case alleges that his supervisor calls him “nigger” and that there is a map in the back of the store circling a black neighborhood with the words “do not rent” underneath. Romine denies any wrongdoing in the case and insists that his bill was aimed at frivolous lawsuits without any consideration for the case pending against his company. Nevertheless, the NAACP and other critics accuse Romine of self-dealing while sponsoring and passing the bill.

The Downfall of Mixed-Motive Cases?

As promised, these restrictions will doom many employment discrimination suits. In an at-will employment position, an employer can fire a worker for any reason except for reasons that are prohibited by law. However, it’s rare today for employers to admit to terminating an employee purely for illegal reasons. Instead, the suits often involve cases where the employer dismisses an employee for a mix of legal and illegal reasons. For instance, if a woman is denied a promotion because her performance review says “she berates the staff” and that she “overcompensates for being a woman,” she might have an actionable suit based on the latter comment. However, the former comment would be a justifiable reason for the business to deny her a promotion.

Under federal law, an employer that has both legitimate reasons and illegitimate reasons will be liable for discrimination. If the employer can prove that it would have treated the employee the same without the illegitimate reasons though, reinstatement, back pay, and future pay will be denied to the employee. States have taken different positions on mixed motive discrimination. Many states have adopted the federal model. Other states permit the employee to prevail even he or she can show that an illegal reason exists, regardless of whether there were other legitimate reasons.

The Future of Missouri Businesses

Missouri has changed from a “no impressible motive whatsoever” position to a legal regime where discrimination must be the “dominating factor.” In other words, for Missouri employees to prevail now, it is not enough to show that the employer was discriminatory. If the employer might have had other reasons for dismissing or denying a promotion, the employee must show that discrimination was the most significant reason for loss of employment or promotion. Previously, the woman who sued for losing her promotion to comments that she “berates the staff” and that she “overcompensates for being a woman,” would have won because the second comment was proof of discrimination. Under the new Missouri law, it is not enough that the second comment exists. Instead, the second comment must be the #1 reason the woman lost her promotion.

Although this structure will undoubtedly force many employees out of the Missouri courthouse, the dominate motive structure is not an unusual one. Even states as liberal as California use the dominate motive instead of the mix motive framework to balance the fight between employers and employees. Instead, the most egregious aspect of SB 43 is that it caps damages. If a state forces a plaintiff to jump through hoops, like establishing dominate motive, it seems overly cruel to limit the damages that a plaintiff can obtain if the plaintiff wins. Employment lawsuits can be long and draining as they are. Missouri has doubled the time, expense, and difficulty for employees to collect a judgment, but it has reduced the amount of money that the employee gets even if the employee does everything correctly. It adds insult to injury if an employee can claim she was discriminated, but gets less for it.