Issues related to the treatment of women, people of colour, religious and ethnic minorities, the LGBTQ2+ community and other historically marginalised groups in the workplace are currently at the forefront of both the news and the court of public opinion.
What, then, is an employer to do when an employee publically takes a position which flies in the face of policies and efforts to redress current and/or historical inequalities? Let’s look to Google’s termination of James Damore for guidance.
In August 2017, Mr. Damore’s employment with Google—a U.S.-based company with headquarters in California, a state with at-will employment—was terminated after he wrote and distributed a memo titled Google’s Ideological Echo Chamber.
The Google memo, as it is now notoriously known, criticized Google’s affirmative action efforts to hire and promote women and “minorities”. Mr. Damore impugned Google’s “politically correct culture” and what he perceived to be Google’s “failure” to acknowledge those manifest biological differences between men and woman which serve to explain, in part, the “[un-] equal representation of women in tech and leadership.”
By way of example, the memo, which was distributed via an internal email list and later picked up by media, states: “Women, on average, have more: Neuroticism (higher anxiety, lower stress tolerance). This may contribute to the higher levels of anxiety women report on Googlegeist and to the lower number of women in high stress jobs.” Googlegeist is an annual survey where Google employees are asked to rate their managers and life at Google. It is also worth noting that there is no scientific evidence or basis for Mr. Damore’s claims.
Google’s management found that in promoting harmful gender stereotypes, the memo and its author violated Google’s Code of Conduct. In response, Mr. Damore cited his constitutional right to freely express his opinions, and in January of this year a class action lawsuit was issued in his name. According to an article in The Wall Street Journal, it alleges, among other things, that Google is a “hostile workplace for employees with conservative views, and that the company unfairly favors women and certain minorities when hiring and promoting.”
How might B.C. courts address a similar situation? And how might an employer take steps to protect itself, its interests and its employees from such potential liability?
In assessing whether an employee’s misconduct is sufficient to warrant the ultimate sanction of dismissal, the Supreme Court of Canada has adopted a “contextual approach”. Courts in British Columbia are directed to apply the following test in determining whether an employee’s actions have given rise to a breakdown in the employment relationship:
• are the impugned acts of the employee properly characterized as misconduct; and, if so,
• is the nature and degree of the misconduct sufficient to warrant dismissal?
Generally, an employee is entitled to criticize her or his employer without fear of reprisal, up to and including a “for-cause” termination. However, in certain circumstances, criticism can be found to undermine the employment relationship such that it is impossible for employment to continue. In such instances, relevant considerations include, but are not necessarily limited to, the following factors:
• The manner in which the employee voices her or his criticism.
• Whether the criticism itself flies in the face of the employee’s professional duties and reasonable expectations of professionalism.
As with any such case, Mr. Damore’s conduct has to be viewed contextually. Google’s Code of Conduct set out clear expectations regarding employee obligations to adhere to, and promote, a specific work environment which, in Google’s case, was to be free of harassment, intimidation, bias and unlawful discrimination. Moreover, the code of conduct strictly prohibited unlawful discrimination or harassment on the basis of race or gender, while prohibiting harassment or bullying in any form. (Such expectations are notably codified in B.C.’s Human Rights Code and Workers Compensation Act).
On its face, Google’s management seems to have made an appropriate decision as the Google memo is likely to be in direct conflict with Google’s Code of Conduct and to have a chilling effect on historically marginalised people in the company’s employment, notwithstanding the policies Google implemented to address these inequalities.
As with all workplace-related concerns, it is the employer’s obligation to be clear in communicating its expectations, including policies, culture, goals and direction. Ignoring the current political and cultural Zeitgeist is not an option—both for legal and business reasons. An employer’s guidelines must be clear, concise, fair and properly communicated in order to maintain a workplace compliant with legislative minimums and social mores.
As we move through the 21st century, and as employees become more conversant with their rights and workplaces strive to maintain safe, harmonious environments, taking steps to communicate expectations which are consistent with the legal framework and the cultural Zeitgeist will, in the long run, save future costs and damage—both direct (legal) and indirect (loss of human capital).