February 21, 2020
In a closely-watched case, the National Labor Relations Board General Counsel (GC) has decided that employees posting controversial views regarding Google’s diversity and anti-harassment policies were engaged in protected activity that did not threaten a hostile workplace environment.
Because the National Labor Relations Act does not allow a private right of action, the NLRB GC has unreviewable discretion as to whether to pursue a case against an employer. Thus, labor lawyers pay close attention to the cases the GC decides (or declines) to pursue, and often base their advice to employers accordingly, even if the Board itself has not issued a decision addressing the specific circumstances. The GC’s view of the law is normally explained in an “Advice Memorandum,” which occurred in the Google cases.
The case arose when Google disciplined certain workers for postings on the company’s intranet employee discussion forum objecting to Google’s various workplace diversity and social justice initiatives. The postings generated strong opposition from coworkers and complaints to Human Resources. HR generally sided with those coworkers and eventually disciplined the parties under the Google employee code of conduct. The Memorandum does not state whether there were eventually any terminations.
The NLRB GC found that, while the posted comments “were somewhat insensitive towards women and minorities in light of the conversation’s context, no employer would reasonably believe that permitting such comments could lead to a hostile work environment.” In contrast, the Memorandum cites similar cases where the expression of unpopular views included objectionable language that warranted discipline. One example involves Google, where the GC “concluded that an employee was lawfully discharged for circulating a memorandum in opposition to the Employer’s diversity initiatives that argued, inter alia, that innate differences between men and women might explain the lack of equal representation of the sexes in tech and leadership.”
Controversial views protected: While the Board has recently narrowed the scope of what expressions are protected, it is not unusual for it to find that expressions that are “somewhat insensitive” do not cross over the line. In an era of considerable political divisiveness that may inevitably find its way into the workplace, employers need to look at every expression on its own terms and how it is expressed and not necessarily through the lens of how controversial the views expressed may be.
Why it’s important: The GC’s decision to act against Google is the latest twist in the difficult area of when an employer may or may not act against an employee based on expression of her or his views about workplace matters. It remains to be seen whether the decision adds needed clarity to the area or just makes things more difficult for employers seeking to maintain an orderly workplace.