Your Thoughts: Google Diversity Memo

Last week lawyer monthly reported on the infamous Google Diversity memo that circulated from within the corporation and sparked much backlash worldwide. The employee that posted the memo, James Damore, was subsequently fired and Google, or specifically Pichai, said: “our co-workers shouldn’t have to worry that each time they open their mouths to speak in a meeting they have to prove that they are not like the memo states, being agreeable’ rather than ‘assertive’, showing ‘lower stress tolerance’ or being ‘neurotic’.”

Lawyer monthly asked Your Thoughts on the matter, and has below listed several comments sent in by the experts.

Emma Bartlett, Partner, Charles Russell Speechlys:

The infamous “Google diversity memo” crystallises stereotypical views rejecting the need to take positive action to improve gender diversity in STEM. The way the Googler chose to share his views was ill-considered. His internal reputation was severely damaged. If he wanted to understand or challenge Google’s diversity objectives, he could have found a more professional way of doing so. Not everyone has to agree on diversity matters. In fact, if views go unchallenged, then the creativity which diversity champions promote could be lost as employers plot measures to improve workplace representation. However, certain views – such as should we be improving female representation in technology at all given our biological differences – should be carefully raised to avoid offending primary principles of equality and stated principles of the employer. The Googler instead created a hostile environment for women in expressing his views as he did.

The Googler’s memo is a massive step back to the attitudes which lead to women being discouraged from taking that path. STEM employers have long recognised worker shortages if recruitment pools are limited to white men. Positive action to improve female uptake in STEM goes right back to primary schools to encourage girls to choose subjects that lead them to STEM university courses.

It’s not a question of freedom of speech; in the workplace, expressing opinions which create an offensive or hostile environment for women (or any workers) constitutes unlawful discrimination. Given that the Googler was senior, it’s reasonable to conclude that he may have not promoted a woman; not because of lack of qualifications, but because of his belief that her chromosomes weren’t right for a technology role.

The same fate could have befallen the Googler had he “privately” posted his comments on social media. If colleagues could have become aware of them, his internal reputation could have been equally trashed. Remember the Apple employee who was fairly dismissed for denigrating Apple products, in breach of Apple’s policies, privately on Facebook forgetting that co-workers were Facebook friends? He could not legitimately have expected his posts to remain private; friends owe no confidentiality obligations. Similarly, a Game Retail manager was fairly dismissed for his prolific offensive non-work related tweets in circumstances where he was followed by 65 of the employer’s stores. His internal reputation was severely damaged.

Jo Sellick, Managing Director, Sellick Partnership:

Google is known for being a forward-thinking organisation with a great employer brand. It is home to a workplace that barely needs to market itself and has potential candidates queuing up for a slice of the Google dream. You would assume, then, that every single employee is of the highest calibre and fully embodies the Google vision. So it was surprising to many when news emerged of a member of staff being fired when he published a company memo which suggested women were inherently less suited to certain tech roles.

Amongst other remarks, the former employee, James Damore, wrote: “The distribution of preferences and abilities of men and women differ in part due to biological causes, and that these differences may explain why we don’t see equal representation of women in tech and leadership.” Google took the decision to fire Damore and the firm’s chief executive, Sundar Pichai, said parts of the memo “violate our code of conduct and cross the line by advancing harmful gender stereotypes”. I agree with Pichai’s decision and believe Google had no other choice. Firms as big as the tech giant should be spearheading the fight against inequality in the workplace and they should have a solid sense of their company values. Whatever these values may be, it is important for companies to uphold their policies across the board and stay true to these morals. This ensures that the right kind of candidate is drawn to the workforce and that everybody is working towards the same end goal.

This is very different to prohibiting free speech in the workplace, which is equally risky. When the EU Referendum took place last year, it was great to hear staff discussing different political views and taking an interest in topical events. I like to see employees who are confident in displaying their personal viewpoints and setting out their arguments intelligently, but this is very different to saying something which you know could cause offence. We strive to have a diverse workforce, which of course includes employing people of differing viewpoints on all sorts of issues. But encouraging staff to express themselves while not offending others can be a fine line, and the onus is on senior management to decide what is and is not appropriate for that particular workplace. This should be set out in a clear code of conduct that everybody reads and understands, so that it does not come as a surprise if the employer takes action against comments that flout the rules.

In terms of Damore’s beliefs, I must express my disagreement and concern that he is assuming such outdated stereotypes when talking about suitability for roles. His assumptions could well cause as much offence to men as they may to women, as gender simply should not come into play when considering whether somebody is right for a job. Yes there is a gender imbalance in the technology sector, but this has nothing to do with biological differences and everything to do with education and how we talk about STEM subjects with children from an early age. If we are serious about equality we need to start educating boys and girls in STEM subjects at a grassroots level and ensure there are plenty of male and female role models working in the sector for young people to admire and emulate. This is a generational change that will take time, but it is entirely possible and initiatives like teaching coding to primary school pupils are extremely encouraging.

Diversity outside of gender is equally crucial and we should introduce mentorships within workplaces that help people of all backgrounds to progress in their chosen career. As National Inclusion Week approaches in September, I am keen to see businesses analysing their company data and seeing just how inclusive and diverse they are and we will be undertaking the same exercise ourselves. Once companies know this information, they can then take steps to address the balance moving forward. Until this kind of action happens we may well continue to see unequal workplaces which perpetuate outdated stereotypes and beliefs.

Jacob Demeza-Wilkinson, Employment Law Consultant, ELAS Group:

This case highlights a few important points for employers. Firstly, and most obviously, it shows the importance of taking quick and firm action where an employee is alleged to have been involved in misconduct. The backlash for Google had they not been seen to take quick, effective and proportionate action could have been particularly severe, and this demonstrates how an employee’s actions can affect the reputation of the business if not dealt with.

Where an employee is reported to have breached a policy or carried out an act of misconduct, it is important to carry out a full and thorough investigation immediately. If you find substance to the allegations, you should then proceed to disciplinary action.

Secondly, the case shows the significance of having in place proper policies and procedures to inform staff what is and is not acceptable in the workplace. Here, Google had a code of conduct which set out clearly what behaviour was acceptable and, as the employee clearly breached this, they were able to act quickly as a result. Where there are no policies and procedures in place, it can often make it difficult to decide what is or is not gross misconduct, whereas a policy outlining what is will make it easier to make the decision and will provide solid supporting evidence should that decision be tested moving forward.

The case therefore shows that in order to manage employees properly and protect the reputation of your business, you should have clear policies in place setting out your expectations for staff, and you should act promptly and effectively when you become aware a policy may have been breached.

David Bradley, Chairman and Head of Employment, Ramsdens Solicitors:

What was James Damore thinking? A doctorate in Systems Biology from Harvard lay behind his attack on the “politically correct” approach by his employer Google to diversity in the workplace. In particular, their policy designed to redress the imbalance between men and women in leadership positions within the tech sector. He has now been fired.

The essence of Damore’s argument, that men and women have different sets of bias, that in summary direct men more towards leadership and women toward team playing has received the criticism it deserves. Damore himself makes clear that not all men and women can be judged on this criteria: so why say it publicly? Diversity is about valuing individual contributions and assessing skills individually and unless there is overwhelming evidence that groups can be defined in a particular way (which there is not), don’t do it! Damore may have thought he was right and entitled to have his say. He has received a salutary lesson that applying a filter to his thoughts may have been as valuable as his view of his own intelligence. Even where we know tomatoes are fruit, we don’t put them in a fruit salad!

The issues do spark a wider debate. Are we too politically correct? Sometimes yes, and it can get in the way of effective management. Some managers and leaders shy away from difficult decisions because the person involved is a man, women, black, white etc. and that is as damaging to the diversity debate as Damore’s diatribe. Effective and confident leaders assess a situation, reflect and act where appropriate, irrespective of bias or the concern that perceived bias can create. You cannot go far wrong following Mark Twain, “it’s never wrong to do the right thing”! The problem is working out what the “right” thing is and on this occasion James Damore came up short.

Sarah Austin, Employment Lawyer, Capital Law:

A new week brings a new high-profile casualty in terms of diversity in the workplace – this time Google.

Google has come under intense criticism this week. An un-named male employee produced a report claiming that the lack of women in tops jobs in the tech industry was due to biological differences between men and women. He urged people to stop assuming that gender gaps imply sexism. He also argued that Google should stop its diversity campaigns – and pursue a path of ‘ideological diversity’.

The author denies that the gender pay gap exists at all. He states that, although in a national aggregate women have lower salaries than men for a variety of different reasons, women get paid just as much as men if they do the same work. Unfortunately for the author, the US Department of Labour disagrees. Google is currently fighting a wage discrimination investigation, following a finding that the company routinely pays women less than men in comparable roles.

Former employees of Google have spoken out on social media, claiming that they encountered similar views in Google. One pointed out that those at the company who share these views are responsible for performance reviews and interviewing people, and claims that they discriminate. According to its own diversity figures published in June, Google’s workforce is 69% male (and 56% white). Women fill only 25% of leadership roles and 20% of technical jobs, such as computer programmers.

Google’s new Vice President of Diversity, Integrity & Governance, Danielle Brown, felt compelled to issue a statement in response to the report. In her statement, she confirms an unequivocal belief that diversity and inclusion are critical to Google’s success. She said: “Part of building an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions. But that discourse needs to work alongside the principles of equal employment found in our Code of Conduct, policies and anti-discrimination laws.”

Kate Shorney-Morris, Managing Director, Zest Recruitment & Consultancy:

This is a classic oxymoron. The suggestion in the quote is that the issue of gender inequality and sexism are totally separate issues, yet one cannot exist without the other. Later in the memo, Damore goes on to suggest that women “have more neuroticism” and “higher levels of anxiety” that lead to the “lower number of women in high stress jobs.

This case highlights two key points – gender equality is still alive and kicking, and that not enough is being done to eradicate it from the workplace even in an industry famed for its meritocratic structure and open culture. Unfortunately, the legal sector is also guilty of failing to address the issue.

Indeed, figures published by The Law Society stated that while almost half (48.8%) of all practicing certificate holders in England and Wales are women, less than 1 in 3 (29%) are partners with the number even lower in the Magic Circle.

So while the legal sector may proclaim that an ingrained glass ceiling does not exist, a quick look at the figures suggests otherwise. Equally, there are many law firms banging the drum for gender parity and diversity but it is clear they are not doing so in unison. Of course, we cannot say with absolute certainty that the low level of women occupying senior roles within the profession is a direct consequence of gender inequality per se, but it is a key contributor.

The legal sector is in the unique position to lead from the front by dispelling the many myths that persist about gender and diversity and extolling the obvious benefits to creating a level playing field for everyone, regardless of gender, ethnicity, orientation, religion or any other pigeonhole we seem so quick to categorise an individual.

The case is a stark reminder that businesses still have some way to go before we reach a state where diversity is no longer an issue, whether in thought or in practice.

Jim Wright, Partner, Shulmans LLP:

James Damore was the author of the Google memorandum that said “we need to stop assuming that gender gaps imply sexism” and “abilities of men and women differ in part due to biological causes.” Google dismissed Mr Damore after his internal memorandum was leaked to the press.

On paper, Google has a diversity issue. Its own data shows its workforce is 69% male and only 20% of its technical jobs are held by women. This, in part, justifies the wage discrimination investigation by the US Department of Labour that Google currently faces.

Theoretically, raw data demonstrating a gender pay gap can be explained by “material factors” as recognised by UK law, where sex discrimination is in no way associated with decisions affecting remuneration and employee reward.

There is no legal support for Mr Damore’s contention that biological causes justify difference in treatment. The UK’s Equal Pay Legislation does not permit this to be a material factor in justifying differential pay rates.

It is likely that Mr Damore’s contentions demonstrate a stereotypical perception as to the allocation of roles based on gender – his comments about biological differences can only taint his supposed justification with sex discrimination.

Although Mr Damore’s rapid dismissal may help Google defend itself from complaints, his comments could be interpreted as demonstrating that the business has a systemic pay discrimination issue and a culture that refuses to try to tackle such matters head on. As well as legal liability, Google is undoubtedly concerned about negative publicity.

Mr Damore’s comment that “we need to stop assuming that gender gaps imply sexism” is wrong. In addition, it demonstrates significant inefficiency on Google’s behalf; Google appears able to find talent from only part, not the whole, of the potential workforce.

Emma Tegerdine, Associate and Employment Solicitor, Cleggs Solicitors:

From an employment law perspective this case is relatively cut and dry – in so much as the employer was left with very little choice as to how to deal with such a flagrant and public breach of its diversity and equality policy by one of its employees.

Most diversity and equality issues which arise in the workplace are not as blatant as this, but the beliefs set out in the memo James Damore wrote, which he circulated to his colleagues, were so outdated and shocking that Google, as the employer, was left with no other option but to take disciplinary action. If Google was to have taken any other action it may have looked as if it was not taking the issue seriously enough, and was trying to brush it under the carpet.

Mr Damore appeared to believe he had the right to freedom of speech – meaning that had the right to have his opinions heard – no matter how discriminatory his beliefs may be. This erroneous belief is shared by many employees in the UK. However, employees are required to comply with their employers’ policies, including polices relating to equality in the workplace, and do not have the right to share discriminatory views at work.

In the UK, the Equality Act 2010 would apply, with the potential for sex harassment claims being submitted against both Mr Damore and his employer, by employees who were offended by the memo. Claims could be brought on the basis that the circulation of the memo was ‘unwanted conduct related to sex’ which had the ‘purpose or effect of violating the employee’s dignity, or creating and an intimidating, hostile, degrading, humiliating, or offensive environment’ for them. If Google had failed to act, this would have encouraged other employees with similar beliefs to air their views and substantially increased the risk of such claims.

Google has a male-dominated workforce and has recently come under scrutiny for the alleged pay gap between male and of female employees, so it has to be particularly careful when it comes to employment diversity issues.

The bottom line here is that the publishing of this memo was such a clear breach of Google’s policy that there was little else it could have done but dismiss Mr Damore. Had I been representing the employer, I would have advised that swift and strong disciplinary action was taken. Given that Google has already come under investigation for gender bias in the workplace, it needed to take this very seriously, so I believe the correct outcome has been reached.

Mike Hibbs, Partner and Head of Employment, Shakespeare Martineau:

The leaked internal memo from Google has made headlines across the globe recently, however underneath the debate about whether Google was morally right to dismiss the employee or not, lie more serious issues regarding freedom of speech, unfair dismissal and brand reputation.

Whilst a company is often entitled to summarily dismiss an employee if they are found to be in serious breach of a code of conduct, as was the case with Google, it is highly important that the code of conduct reflects the culture, expectations and corporate ethos of the business.

The codes of conduct need to strike a careful balance between allowing freedom of expression (which is a fundamental right of all UK citizens enshrined under Article 10 of the European Convention on Human Rights), and protecting the rights of other individuals and employees not to be subject to harassment or inappropriate comment.

Google said that the memo perpetuated gender stereotypes towards females which violated its code of conduct. However, Google is a business that generally promotes the free use of content so the snap decision to fire a member of staff for criticising a company diversity policy could seem to stand at odds with its core values. Indeed, it could be argued that in choosing to dismiss the employee, Google has chosen to discriminate against the individual by not allowing him to express his own opinion.

The seniority of the role of the individual within the organisation and the type of communication is significant when choosing an appropriate course of action. If it was the CEO who had sent the memo then being publically seen to hold the individual accountable may be reasonable to protect a company’s brand image and values However, where it is a relatively low-level employee expressing a view via an internal communication channel, dismissal may not be quite so easy to justify.

In such cases it is vital that businesses have a properly drafted social media policy which considers the severity of different actions. It is also very important for employers to consider whether a punishment other than dismissal is more reasonable, such as a final written warning.

The Google case should stand as a warning to employers. Once a worker is dismissed the situation goes beyond the organisation’s control. This case, rather ironically highlights that one of the biggest threats to businesses in the age of social media is not always the risk of an employment tribunal claim, but the adverse publicity it attracts when things go wrong.

Liz Timmins, Associate, Doyle Clayton:

Google should be justified in dismissing their employee whose internal memo stated: “we need to stop assuming that gender gaps imply sexism.” Although the employee is right that a gender gap is not, in itself, evidence that women are being discriminated against in the workplace, his memo went further, arguing that the abilities of men and women differ in part due to biological causes. The employee seems to be suggesting that women may be incapable of doing certain jobs such as tech and leadership roles. Such stereotypical assumptions are a significant factor in the under-representation of women in some roles and are entirely unacceptable in the workplace. Indeed, the Equality and Human Right Commission’s Code of Practice makes it clear that stereotypical assumptions must be avoided during recruitment and promotion exercises. The memo will therefore be a huge concern for Google, particularly as colleagues who are offended by it could claim harassment and Google could be held liable unless they can show they took reasonable steps to prevent harassment occurring. It is therefore not difficult to see why Google considered that it was necessary to dismiss the employee concerned.

We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!