The state of free speech in the modern workplace

Last week, a lawsuit instigated by an internal Google memo that stirred the pot in Silicon Valley in 2017, that led to the sacking of former Google software engineer James Damore, has come to an end with an undetailed court filing. We’ve been bombarded by COVID-19 news, and so it was a quiet ending. What was Damore’s crime exactly again?

His crime was being politically incorrect in his “anti-diversity memo”, but really he was sincere and polite in his writing. There was no malice, as it read more like a diversity improvement manifesto, not an anti-diversity one. In Google’s eyes, he was floating the wrong ideas (no matter how good), and when word got out, Google did not hesitate to throw Mr Damore onto the human scrapheap.

Having read the “manifesto” with an open mind, I form the view that Mr Damore does value diversity and inclusion, just not at the expense of diversity and inclusion of opinion. What could possibly be wrong with that? He also accepts that sexism exists, and he isn’t a fan of stereotypes — he maintained this position throughout his piece.

At no point did he write or imply that because men biologically differ from women, men therefore are superior to women. Or whether the differences are right or wrong. He just merely speculated biology may partly explain why we don’t see equal representation from women in STEM and leadership. He then throws in a caveat that there are significant overlaps in traits between men and women. If anything, Mr Damore just wants us to critically think about our assumptions on gender diversity and inclusion.

He makes a similar speculative argument regarding personality differences, on average, between men and women. He’s not ramming his version of the ‘truth’ down our throats, he just wants us to do the good thing — critical thinking. My favourite point from Mr Damore is: “We always ask why we don’t see women in top leadership positions, but we never ask why we see so many men in these jobs”. So why do we see so many men in these jobs?

His “manifesto” is not a mere whinge piece. He suggests non-discriminatory solutions to reduce the ‘gender gap’. Yup, he wants to see an increase in women’s representation in tech and leadership without resorting to discrimination. His suggestions include:

1. Make software engineering more people-oriented with pair programming.

2. Foster a corporate culture of cooperation and collaboration.

3. Foster a work flexibility culture.

Mr Damore values gender and racial diversity — the more the merrier it seems. He just believes that programs, mentoring, and classes exclusively for people of a certain gender or race is the wrong way to go about it, amongst other discriminatory practices at Google. He has a genuine concern that this can flame gender and race tensions in the workplace. Was it unreasonable for him to argue that people should just be treated as individuals, not as members of their respective identity groups?

In simple, his crime was provoking critical thinking at Google. Diversity really is a celebration of all the great things that make us all different, including opinions. And he was onto something. Workplace programs that were most effective at improving outcomes for women also improved conditions for men. In the lead-up to Damore’s sacking, Google failed to show any significant change in the composition of its workforce, despite having invested $2.65 million into a diversity program.

The company’s first diversity report revealed that 61% of their staff were white, and only 30% of their workforce were female, which was only a 1% growth over the two years leading up to Damore’s memo. Likewise, the number of African American employees hadn’t increased at all, sitting at a dismal 2%. Speaking about diversity programs, Erica Baker, an African American former engineer at Google said that the “only people who show up are the people who are already thinking about and working on those biases, and the people who really need it aren’t going”.

Nevertheless, in 2018 the US National Labor Relations Board attorney concluded that Damore’s memo was offensive enough to cause disruption in the workplace, making his sacking lawful. So it’s no surprise that here in Australia around the same time, we had the Izzy Folau saga unfold.

Don’t like Folau’s opinions on homosexuality? I get it, I’m gay too. So why in God’s name did we pressure his masters to end his career, deplatform him on GoFundMe, only to then embolden him and his supporters, who ended up donating to him more than $750,000 in a matter of hours at one point?

Izzy’s detractors gave him a lot more oxygen than he needed, what did these virtue signallers expect? With that extra oxygen, he just continued to grow his audience who’ll listen to his opinions, the opinions which his detractors didn’t like to begin with. I wasn’t surprised in the slightest bit: this is what happens when you don’t live and let live.

Put aside the emotions though: you’ll find that both the Damore and Folau cases found their logical conclusions. They were always going to settle, since nearly all unfair/unlawful dismissal type cases do. Court is expensive, high-risk for both parties, where an employer has to wear the publicity and an applicant with potentially no case risks the facts being exposed.

No lawyer can simply afford to put an applicant on the stand who is incapable of stoic consistency in the face of cross-examination, vulnerable to being baited to go off script and who might make bizarre, self-harming statements. That begs the question, is there more to his case than Mr Damore is letting on? Maybe not.

Whilst companies in Silicon Valley reacted by introducing workplace rules designed to protect employees with alternative viewpoints, Google now have internal rules that discourage employees from debating. In fact, Google went from being a famously open-minded company to one that engages in censorship and political bias, proving that the company has learnt nothing from the Damore case. The seemingly logical conclusions for the Damore and Folau cases simply doesn’t clarify the state of freedom of speech in the modern workplace.

To be fair, Google and Rugby Australia are not your average employers. From what I can tell, it’s not often that an employer finds themselves caught in the legal minefield of workplace law as well as political/social debate. I recognise that it’s legitimate to challenge those who’ve never employed and sacked anyone recently to do any better in the Damore and Folau cases. But even in the world of commercial reality and reputation management, don’t principles mean at least something?