Does James Damore Have A Case Against Google?

Jon-Erik G. Storm
Aug 9, 2017 · 1 min read

Mr. Damore sounds like he is preparing to make a case under section 7 of the NLRA—the union organization law, but he has other claims. This piece in Fortune incorrectly identifies his second option as Title VII. He has little hope there. More promising might be the California version, the Fair Employment and Housing Act. But even there, I wouldn’t hold my breath.

The best option is probably the third one they identify, a claim under California Labor Code 1101. There is also California Labor Code 96(k), unmentioned by Fortune. The latter simply prevents “discharge for employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” In the Internet age those last two might be hard to define. Certainly, speech is lawful conduct. The latter law has been trimmed back by the Courts, but usually in the context of something not directly implicating free speech.

I have actually read the memo and I think it is nowhere near as awful as advertised, but I do think it is factually incorrect on the most salient points. I think the NLRA claim is probably just there to stoke irony on the right. Having said that, I do think he has a possible claim under the Labor Code.

Jon-Erik G. Storm

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