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NLRB Distinguishes Between Protected and Unprotected Criticism of Diversity Policies

    Client Alerts
  • February 24, 2020

In a well-publicized incident in 2017, Google terminated an employee who circulated a memorandum opposing the company’s diversity program. The employee claimed that innate differences between the sexes made females less suited for technology jobs. Following that termination, in an advisory memorandum the National Labor Relations Board upheld Google’s termination of that employee based on discriminatory and therefore legally unprotected statements.

In an earlier, less-known situation, Google issued a final written warning to an employee who responded to comments about the diversity initiative posted on the company’s intranet. The employee raised questions over whether the diversity policy prohibited employees from complaining about the policy or allowed bullying of politically conservative employees. In a series of advisory memos, including one issued earlier this month, the NLRB confirmed its opinion that this employee’s comments were protected concerted activity under Section 8(a)(1) of the NLRA.

In the recent memorandum, NLRB legal counsel distinguished between the two situations. Google was justified in terminating the employee in 2017 because this action was based on discriminatory statements included in his communication, and not because he criticized terms and conditions of employment. In the less-known case, the employee’s comments, while insensitive, did not use derogatory or discriminatory language. The NLRB rejected Google’s argument that the warning was intended to prevent future conduct that could rise to this level.

The NLRB admitted that employers face difficulties in balancing employee concerted activity rights with attempts to enforce anti-discrimination policies. However, expressions of skepticism over the effects of such policies did not cross the line into potentially hostile or offensive conduct. Employers may react to these decisions by rethinking the benefits of hosting intranet or other employee platforms that could result in objectionable but legally protected employee comments.