Discrimination Isn’t Just a Difference of Opinion – It’s a Violation of the Law

Discrimination Isn’t Just a Difference of Opinion – It’s a Violation of the Law
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In employment law, it is a rare case that involves the kind of explicit, unequivocal sex stereotyping expressed in James Damore’s intra-corporate memo at Google, which argued that gender disparity in the tech field is due to biological differences between men and women rather than bias.

Damore’s memo cobbled together an array of pseudoscientific claims about the innate abilities of women, including the outdated, offensive myth that women are biologically more neurotic and less inclined to leadership skills, to argue that Google should abandon efforts to address its staggering gender gap. Rather than take Damore’s advice, the company terminated his employment, explaining that the memo violated company policy by promoting harmful gender stereotypes. Damore now argues that the law prohibits Google from firing him to enforce its anti-discrimination policy. He is wrong – the law does not protect discrimination as free speech or workplace organizing, nor should it. Title VII, in force for more than 50 years, in fact requires employers to take action against the kind of hostile work environment created by Damore’s sexist conduct.

Put simply, the law does not allow employees to subject their co-workers to discrimination, and it does not allow employers to look the other way when discrimination is underway. Damore’s memo disseminated attitudes about women that suggested their innate inferiority for certain tasks common to the tech industry, which denigrated his female peers as naturally less-suited to the field than men. The views he expressed were not about Google’s operations in a technical context, not about its business decisions or its treatment of employees as a general labor matter. Damore chose to pontificate his own personal views about the abilities of women as a whole, and to urge the company to take action towards women based on theories of their “natural” limitations. Most discrimination cases involve bias that is pervasive, but difficult to substantiate - in Damore’s case, his discriminatory bias against women is literally in black and white. Distributing these statements stigmatized the women working alongside Damore, and had the potential to reinforce or even embolden existing gender bias already in place. Google had a moral and legal obligation to address these actions and it took the right step in removing Damore from the workplace.

As legal commenters on all sides have noted, Damore has no First Amendment right to express political views at work because the law applies only to government restrictions on speech. Still disgruntled by Google’s enforcement of company policy and its adherence to federal law, it appears that Damore is now trying to argue that his memo constituted a protected labor activity. This argument profoundly distorts basic principles of employment law, and should not be legitimized by any legal body.

Damore’s position is, in effect, that an employee’s statements of personal opinion about women (and presumably other groups protected under Title VII) are immune from discipline when they are expressed as concerns about workplace conditions. Taken to its logical end, this argument would allow bigoted conduct in employment that the Supreme Court has long recognized as unlawful. Unlike the First Amendment’s content-neutral limitation on the government regulation of speech, Title VII is not neutral with regards to discrimination in the workplace – it is expressly opposed to it. Damore’s attempt to cast his sexist proposals as merely policy suggestions, equally legitimate to raise in the workplace as any other, threatens the very core of long standing American legal precedent.

Damore’s logically unsound and regressive views have set off a firestorm of public reaction in part because they are now clearly ascendant at the highest levels of our federal government. Under the Trump administration, sex discrimination standards under Title IX, for example, are being shifted to protect accused students rather than victims on grounds of toxic sex stereotypes about false reporting. The administration has endorsed bigotry against sexual minorities, as well, arguing in a recent amicus brief that sexual orientation discrimination is not included in Title VII’s bar on sex discrimination. Most recently, the Department of Justice issued new orders to the Civil Rights Division to prioritize investigation of college affirmative action programs, focusing on the purported harms to white applicants.

As these developments show, we are engaged in a renewed struggle over our nation’s basic commitment to gender and racial equality. In a democracy, there should be no such debate. Contrary to the bleak picture set out in the Damore memo and by the Trump administration, we are not all locked in a zero-sum game, where any gains to women or racial minorities must come at the expense of white men -- innocent majorities. All of us benefit from a more diverse, inclusive society where we gain from the broadest set of abilities. And we have all already lost immeasurable benefits from the exclusion of women and minorities thus far. Affirmative action, including diversity and inclusivity programs, enriches the entire nation by bringing forth individuals whose abilities might otherwise go untapped. Just as the law enabled discrimination for generations, it can and must now enable the correction of inequality.

The law must also provide no haven for individuals like Damore, who subject women and others to belittling stereotypes at work - no matter what guise their statements take.

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