The media is rejoicing at a ruling by the National Labor Review Board (NLRB) which claims that Google was within its rights to fire its former software engineer, James Damore, for questioning company diversity policies. Except there’s one snag: the NLRB “ruling” wasn’t a ruling at all – it’s an internal advice memo with no effect on Damore’s current legal claims.
The most remarkable thing about the NLRB’s internal memo on Damore’s dispute with Google is that they had no case to rule on. James Damore had withdrawn his NLRB case over a month before the memo was released publicly, to focus on his class-action lawsuit against Google.
Damore’s attorney in the lawsuit, Harmeet Dhillon commented, “the NLRB normally is supposed to handle a firing case quickly, within weeks, not months, because the NLRB’s mandate is to get redress for the employee quickly if possible, including rehiring and back pay.”
Google managed to drag out the process by months through delays and refusal to provide documents to the agency, and as we later learned, through other tactics. As we came up to five months after the termination with no action by the NLRB for James or for the other people affected by Google’s illegal conduct, we went ahead and filed the class action lawsuit in January, and then withdrew James Damore’s NLRB charge. At the time we became aware of this memo last week, he no longer had a case pending before the NLRB.”
As there was no case before the NLRB relating to James Damore, the agency had no reason to release an opinion on Damore and Google. So why did they do it?
The internal advice memo’s release is a gesture favoring Google. The tone and content of the memo are openly hostile to Damore. It was written without the benefit of any hearing having taken place, or any sworn testimony received, and it appears to accept as truth many representations that Google has presented to the NLRB.
What lies behind the timing and release of the memo given the procedural posture of a now-withdrawn charge? There are three possible explanations: classic D.C. swamp machinations, partisan politics infecting the institutions of government, or a mix of both.
The NLRB memo states that James Damore’s claim that there is a biological basis for gender disparities in STEM industries was somehow a “discriminatory” statement which made Google’s decision to fire him justified. The memo puts the term “scientific” in quotations in such a way as to disparage the numerous studies Damore cited to support his position that Google’s gender gap may be attributable to factors other than discrimination.
But the claim that biology affects the group career preferences and talents of men and women is no longer controversial. Liberal academics including Steven Pinker and Simon Baron-Cohen have made the same claim, supported by considerable scientific research. It is the opposite view, that there is no biological basis for differences between men and women, that is now widely seen as a relic of 1970s thinking, even by left-wing, liberal academics.
Unless they had a strong vested interest in defending Google (entirely possible) the only type of person who would disagree with the reality of biological gender differences to the extent of penning a media-oriented hit piece masquerading as an “internal memo,” would be a partisan leftist. Is the author of the NLRB memo, Jayme L. Sophir, such a partisan?
Here’s what we know: Sophir was appointed to lead the NLRB’s division of advice in July 2017, in one of the last acts of outgoing general counsel Richard F. Griffin Jr. Griffin Jr., in turn, was appointed general counsel in 2013, by President Obama. His replacement, Trump-appointed Peter R. Robb, took office after Damore filed his original claim with the NLRB in August, 2017 — on the very day he was fired by Google. For months, a team of Obama appointees and officials managed the internal discussions about the case at NLRB headquarters.
It is entirely possible that Robb simply let Sophir take the lead on the case — it was, after all, her area of responsibility to advise the California NLRB on the case. If Sophir were a partisan, she could have used her broad authority to do as she pleased on the Damore case – even to the extent of overturning the formal decision of the local NLRB office to proceed with his case, a decision that had taken place in 2017 after reviewing evidence submitted by both sides.
We have reached out to the office of Peter R. Robb to find out if the memo has his stamp of approval as well. His office has yet to respond.
Furthermore, the NLRB has defended far more dubious employee behavior in the past. For example, in 2001 they ruled that an industrial union representative was not being racially prejudiced when he used the N-word. The recent memo, even though it isn’t an official ruling, represents a significant break with precedent. The NLRB has often been accused of being a weapon of trade unions and employees against corporations. But in Damore’’ case, it is being used by Obama holdovers as a weapon for the wealthiest tech company in the world to have its way with workers who challenge what they believe are illegal workplace practices.
Google spent more lobbying money than any other company last year. According to a source familiar with the matter, they also directly lobbied the national NLRB headquarters regarding the Damore case and other cases involving Google workers challenging repressive “work rules” or HR policies that allegedly chill Google employees from discussing their working conditions with other employees.
It is possibe that Google’s secretive lobbying efforts have paid off. Although the work rules challenge is ongoing, we have learned that it has been subjected to a series of visits to Sophir’s office over the past several months. It’s possible that Sophir, the most anti-Damore and pro-Google NLRB official involved in the case according to sources, is simply a partisan leftist, and thus receptive to Google’s arguments on a purely ideological basis – even to the extent of ignoring worker rights, whose protection is the key mission of the NLRB.
The bias towards Google at the NLRB may be more than a mere ideological preference, though; Sophir was elevated by an Obama appointee, and the deep links between Google and the Obama administration are well-documented.
The NLRB memo should raise alarm bells for more than one reason. The first is the unusual step the NLRB took in releasing a memo on a charge that had already been withdrawn, for seemingly no purpose beyond influencing another case entirely beyond its jurisdiction — Damore’s class-action lawsuit.
The second is the precedent this sets for other employees who bring their complaints before the NLRB. They must now worry that the organization, which is meant to protect labor interests, is now protecting certain corporations instead, and on a purely political rather than a reasoned and predictable basis. Google employees cheering James Damore’s departure may one day find themselves wishing that the very labor protections they expected would cover them, had not been lobbied out of existence by their seemingly progressive employer’s efforts, with the willing compliance of the last administration’s ideological agents.