Google Violated NLRA by Disciplining Employee over Diversity Policy Criticisms
February 26, 2020
The National Labor Relations Board (NLRB) has held that Google, Inc., violated the National Labor Relations Act (NLRA) by issuing a final written warning to an employee after the employee and like-minded coworkers posted complaints about workplace diversity policies on Google’s internal social networking platform. The NLRB rejected Google’s contention that its discipline was lawful efforts to "nip in the bud" the sort of employee conduct that could lead to a hostile workplace. When an employee’s conduct significantly disrupts work processes, amounts to racial or sexual discrimination or harassment, or creates a hostile work environment, the NLRB has found the conduct unprotected even where it involves concerted activities regarding working conditions. In an earlier case involving Google, the NLRB concluded that an employee was lawfully discharged for circulating a memorandum in opposition to the employer’s diversity initiatives, which argued that innate differences between men and women might explain the lack of equal representation of the sexes in tech and leadership. There, the NLRB found that "the use of stereotypes based on purported biological differences between women and men was so discriminatory and offensive as to likely cause, and did cause, serious dissension and disruption in the workplace." he lawfulness of the discharge inthatcase was strengthened by the fact that Google carefully tailored its message to make clear that the employee was dischargedsolelybecause of his unprotected discriminatory statements. But in the instant case, the NLRB concluded that unlike the statements espousing gender stereotypes that it found discriminatory, offensive, and disruptive in the previous Google case, the employee’s somewhat insensitive posts were not so offensive or disruptive as to lose the NLRA’s protection. Google did not point to any particular words the employee used as being so derogatory, abusive, or discriminatory that they might lead to a hostile work environment. Google argued instead that the employee’s posts were provocative and hurtful given the forum in which they were posted—a thread calling for support for minorities and sharing a personal story illustrating the negative experiences of women in tech.
