Complaining About Workplace Discrimination and Harassment — But Not to the HR Department

Bloomberg News reported this week about a new tool at Google for employees to use to informally share information about sexual harassment, racism, offensive conduct — and even positive HR developments that they want to praise. It’s called “Yes, Google,” and it’s an employee-run message board, with information also distributed by email. Google employees use it to talk across the company in a broader forum about these challenging issues, rather than (or in addition to) whispering to each other in conference rooms and at cafeteria tables. According to Bloomberg News, about 20% of the company’s workers have subscribed to it so far. That number indicates the hunger for this kind of information-sharing at large technology companies.

Employees run Yes, Google as a volunteer activity. It’s distributed over Google’s official communication channels, but isn’t company sponsored. It is, though, apparently company-accepted, company-tolerated, and maybe even unofficially endorsed in a way: Google management is aware of the list, and in fact, a group of Google vice-presidents have suggested it internally as a tool to help prevent sexual harassment and retaliation at Google.

The Bloomberg article cites a range of different types of information that employees have shared on Yes, Google recently. The examples run the gamut from the kinds of allegations that often form the basis of serious discrimination and sexual harassment complaints — for instance, that male managers made jokes about rape, referred to women as “bitch[es],” and inappropriately touched women employees — to discussions of more isolated, but offensive, comments, to statements probably best described as microaggressions, to praise for providing more non-alcoholic beverages at company meetings.

Much of this content could have legal implications. A Wharton management professor quoted in the article noted the risk of “libelous” comments on Yes, Google, but I don’t see that as a major concern. The biggest legal issues center around retaliation and the company’s legal duty to prevent discrimination. Under California law, employees can sue for retaliation when, among other things, they have been mistreated in certain ways because they “[p]articipat[ed] in an activity that is perceived by the employer or other covered entity as opposition to discrimination.” Because Google management has encouraged employees to use Yes, Google to address harassment and discrimination issues, a court would probably find that the company viewed posting a discrimination or harassment complaint on Yes, Google as “opposition to discrimination.” That, in turn, means that if a manager found out about the post and retaliated against an employee for complaining, Google could be liable for illegal employment retaliation.

Google employees are probably aware that at least some management (and probably HR) monitor the list. In fact, the Bloomberg article discusses one incident in which Google fired an employee for sexual harassment as a result of a Yes, Google post. This has at least two further implications.

First, many employees may post to Yes, Google because they are concerned about reporting an issue to HR (either because they fear retaliation or because, for corporate politics reasons, they don’t want to be the cause of a huge investigation or people getting fired). But if they know that the list is being monitored, it becomes less of a “safe space” for them to discuss issues privately, which may undermine some of its usefulness.

Second, Google as a company is legally obligated to prevent discrimination, harassment, and retaliation, and is legally on the hook for any discrimination, harassment, and retaliation by co-workers that it doesn’t deal with appropriately. So Yes, Google raises these questions: should the company now treat every complaint on the list as an official HR complaint, and respond accordingly? And should it worry about liability for failure to prevent bad behavior if it doesn’t do that?

Yes, Google also poses another legal risk, and it’s one that is unique to a discussion forum (or social media or email list) setting: claims under the National Labor Relations Act. As the law stands now, that statute is interpreted as barring retaliation against employees (even non-union employees) for discussing working conditions with each other. If anyone retaliates against employees for discussing working conditions on Yes, Google, that could form the basis of a retaliation claim under that statute.

None of those risks, though, is good reason not to have a forum like Yes, Google. Like it or not, many employees — not at Google specifically, but at many companies — worry about bringing their complaints to HR. The best thing about Yes, Google, from an employee perspective, is not that it will get individual problems solved — the company can’t do much about a complaint that doesn’t identify who did what to whom — but that it allows employees to share stories with each other and feel less isolated, and allows senior managers to learn about problems that they might not otherwise know about so that they can try to improve the culture from a high level, to discourage bad behavior and make it less common. It’s better for an employee to make an anonymous complaint without specifying the bad actor — which doesn’t cause further discomfort for either side, but at least makes people aware of what kinds of things are happening — than for them to say nothing at all, if those are the only two choices they feel comfortable with.

If nothing else, Yes, Google should make employees feel that someone, if only their co-workers, hear their voices and that the company genuinely wants to root out bad behavior. In any large company, it’s inevitable that some people will do things that they shouldn’t do. But sunlight, as they say, is the best disinfectant.

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Disclosure: I know quite a few people, both men and women, who work at Google. They include close friends, friends of friends, and former law school classmates, and some work in the legal and HR departments. None of them were consulted about, commented on, or provided any information used in, this post.