Employer OK to Fire Worker Who Pushed Gender Stereotypes

If you’re a regular eNews reader, you’ll remember our discussion last fall about the Google memo. You know, the one where the Google engineer complained that there was too much diversity at the company and that women were neurotic and mentally inferior?

After he was fired for his inflammatory memo, the engineer filed an unfair labor practice charge with the National Labor Relations Board (NLRB), claiming that Google had illegally interfered in his right to engage in protected concerted activities. (Under federal law, all employees—unionized or not—have the right to talk with co-workers about wages and other working conditions. This includes when a single employee tries to initiate group action, as well as where an employee brings a group complaint to the attention of management.)

The NLRB has now refused to issue a complaint against Google, finding that even though the engineer did engage in some protected activity, nonetheless the tech giant was entitled fire the engineer for violating its anti-discrimination and diversity policies:

The Board has acknowledged that it has a duty to balance an employee’s statutorily-protected rights against an employer’s legitimate right to enforce its workplace rules and managerial prerogatives. An employer’s good-faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws.

Additionally, employers have a strong interest in promoting diversity and encouraging employees across diverse demographic groups to thrive in their workplaces. In furtherance of these legitimate interests, employers must be permitted to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

The NLRB likened the Google case to others where employers properly fired or disciplined employees for making racially inflammatory, sexually harassing, or vulgar homophobic statements.

What this means to you: Employers have not only the legal obligation to have a comprehensive anti-harassment policy and to enforce it fairly, but also the business need to have a tolerant and diverse workforce.

Fair Measures’ Respectful Workplace and Managing Within the Law workshops and Harassment Prevention Training webinar include not only legal requirements, but also focus on your organization’s policies. Going beyond this, we address unconscious bias and microaggressions in the workplace and bring in your organizational values, as well as the values of the participants, to create a truly respectful workplace. To find out more about our programs or to book a workshop, please call 800-458-2778 or email training@fairmeasures.com.

Posted 03-14-2018

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2018-04-05T19:14:24+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.