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You're right, the NLRB isn't settling the science. It's saying that discussion of the science renders otherwise protected speech unprotected ("so harmful, discr

You're right, the NLRB isn't settling the science. It's saying that discussion of the science renders otherwise protected speech unprotected ("so harmful, discriminatory, and disruptive as to be unprotected"), and effectively removing workers' legal right to engage in science-based discussion of whether a 50/50 gender ratio is the appropriate goal.

tptacek 9y ago
You don't have a legal right to engage in science-based discussion of anything at your workplace! Damore's claim is subtly different. He relies on the fact that you do, under the NLRA, have the right to organize to change workplace conditions. But your right to do that is enforceable only through the NLRB, is an exception to at-will employment, and is trumped by federal and state EEO laws. When employee organizing conflicts with employer legal compliance, the employer's low burden to justify a termination is even lower.
- leereeves 9y ago
  If we have a legal right to discuss something at work, we should also have a legal right to a science-based discussion of that topic. The Advice Memo seems to agree that discussion of Google's diversity program was protected speech, until it strayed into scientific findings that some people found offensive.
  - tptacek 9y ago
    I think you're still not getting it. You don't have the legal right to discuss things at work without termination. Blanket federal employment law says that there is a powerful presumption in favor of the employer when terminating employees. They can fire you for what you say. They can fire you for dying your hair the wrong hair color. They don't need a good reason. You need a good reason if you're going to contest a termination.
    - leereeves 9y ago
      The NLRB referred to some things employees do have a legal right to discuss without termination: > expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs, which were likely protected Damore's memo was critical feedback about Google's diversity policy. The inclusion of certain controversial scientific findings is perfectly reasonable in this context.
      - tptacek 9y ago
        The Advice Memo was signed and attributed to a 30-year veteran of the NLRB, and the content of the memo was signed off on by the NLRB's GC, who is a Trump appointee. They disagree with you.
- joshuamorton 9y ago
  And I may be reading a bit too much into the "ruling", but I expect that their decision would have held even if employees did have a right to engage in "science based discussion" as GP posits. That's why they cite the Honda ruling. Essentially even if the content is not a-priori problematic, the way it is presented was.
  - leereeves 9y ago
    Once again I'm not positing a right to "science-based discussion". I'm saying the right to discuss workplace issues, granted by the NLRA, should include science-based discussion of these issues.
    - joshuamorton 9y ago
      It does. So far, about 4 people have explained this across many threads, and you still don't seem to acknowledge it. Edit because rate limited: The problem is not what was said, necessarily, but the way in which it was said. Hence citing the Honda ruling. This is at least my, not-a-lawyer interpretation. That is, just because you are saying something to discuss workplace issues does not give you the right to say literally anything. Sufficiently disruptive discussion of workplace issues is still disruptive enough to merit a response, not because of the content, but because it is disruptive. Apparently the NLRB draws the line for sufficiently disruptive somewhere before "results in the demonstrated loss of multiple perspective candidates".
      - leereeves 9y ago
        Several people have claimed that. I dispute that claim because that's not what I see in the memo. > the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected. Notice the reason the NLRB gave in this statement for why they are unprotected: not because they are unrelated to the discussion of workplace issues, but because they are offensive.
        andrewprock 9y ago
- ankushnarula 9y ago
  The Advice Memo clearly implies skepticism at Damore's intent and the sources own which he relied. It sets the precedent for successful EEO claims against any venue where the content contravenes similar social justice based codes of conduct and employment agreements. Damore's top line argument was that these diversity programs are causing reverse discrimination, workplace hostility, and monoculture. The rest of what he wrote was descriptive and prescriptive. And bear in mind, EEOC also has a mandate to protect employees who file their concerns over discrimination. I believe the active class action discrimination lawsuit against Google could be a stepping stone to break up this kind of EEOC precedent.
- ncallaway 9y ago
  > You don't have a legal right to engage in science-based discussion of anything at your workplace! This is the point that I think most people aren't getting. It seems like people are starting from the position that one should be able to have free and open conversations in the workplace. That a company shouldn't be able to fire an employee for dissent. But this is _absolutely_ not the case with at will employment. If you say just about _anything_ in the workplace (or not at the workplace!) that your employer doesn't like they can terminate you. I think the quoted sentence is the key to understanding this all. Your 1A rights only protect you from the government. Your employer may not—and does not have to—tolerate a "marketplace of ideas"
  - leereeves 9y ago
    This is probably worth repeating: According to the NLRB, the National Labor Relations Act grants workers the legal right to discuss work-related issues with each other. https://www.nlrb.gov/rights-we-protect/employee-rights https://www.nlrb.gov/rights-we-protect/employee-rights This comes from Section 7 of the National Labor Relations Act: "Employees shall have the right to...engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." In this specific case, the Advice Memo refers to protection for "expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs".
    - ncallaway 9y ago
      Yes, and the specific details of this case are not protected by the NLRA. Also according to the NLRB.
      - leereeves 9y ago
        Yes, we all agree that's what the NLRB said. We're discussing how they came to this conclusion. The lawyer who wrote this memo argued that Damore's statements would normally be deserving of protection, if they weren't so offensive.
ewjordan 9y ago
Damore has basically 3 points in his memo, in increasing order of disputability: 1) Conservatives are discriminated against at Google, which is a problem for working conditions 2) Google pushes an aggressive voluntary affirmative action policy which aims to hire women and underrepresented minorities at rates much higher than they appear in the relevant sector of the workforce, and the way this is pushed internally is a problem for working conditions 3) The reason women are underrepresented in the tech job market is biology Notice that 3) has nothing to do with working conditions, it's just an elaboration on why 2) upsets Damore so much; it could have been left out and he would have been covered under the exemption, while still making his point about working conditions and hiring policies. People within Google are totally free to disagree about whether a 50/50 gender ratio is an appropriate goal, and they are protected under this law as far as protesting those goals as they relate to working conditions. But the ruling says that the specific arguments you bring into play may still be in violation of company policy, and such arguments are not automatically protected by virtue of being connected to a working conditions complaint. Especially when they could be construed as hurting a company's ability to abide by laws regarding hostile work environments. There's probably room for disagreement about the correct interpretation of the law, but I don't see it as a matter of removing the right to discuss freely, it's merely a tight technical interpretation of where the at-will exemption ends.
- leereeves 9y ago
  Why do you separate 2 and 3? Point 3 is Damore's detailed criticism of point 2. He's arguing (clumsily) that the goals of the policies in point 2 conflict with certain scientific research.
  - tptacek 9y ago
    Because in the course of making point 3, he violated Google's anti-harassment policies, and the NLRB defers to companies as to the reasonableness of their anti-harassment policies, because a different federal law that NLRB does not manage requires companies to have anti-harassment policies. If he'd been arguing for better office furniture and Google claimed to fire him over violations of an anti-harassment policy, the NLRB would almost certainly not defer to Google. But he wasn't arguing for better office furniture; he was arguing about biological differences between men and women and how they might impact the distribution of male and female engineers at Google.
jxdxbx 9y ago
There is no such “legal right” to discuss things in the workplace. Where do you get that from? Maybe there should be one, but there isn’t.
- leereeves 9y ago
  According to the NLRB, the National Labor Relations Act grants workers the legal right to discuss work-related issues with each other. https://www.nlrb.gov/rights-we-protect/employee-rights https://www.nlrb.gov/rights-we-protect/employee-rights This comes from Section 7 of the National Labor Relations Act: "Employees shall have the right to...engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." In this specific case, the Advice Memo refers to protection for "expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs".
  - shadowmint 9y ago
    Have you considered the reason you keep getting the same response to all of your posts in this thread is perhaps because you keep making the same assertions in slightly different ways? Calm down dude; we get it. You don't have to post the same comment over and over again to make your point. You'll have a make more meaningful conversation if you stick to one thread and actually engage rather than just copy/paste your reply.
    - leereeves 9y ago
      When more than one person makes the same provably false claim, such as "There is no such “legal right” to discuss things in the workplace", isn't it worth correcting more than once?
      - shadowmint 9y ago
        Unfortunately posting more or less the same comment in many threads just makes other people do exactly the same thing in frustration and destroys the entire comment thread with copy-paste wars. It's bad forum etiquette everywhere, not just on HN, and it ruins the conversation for everyone. > When more than one person makes the same provably false claim /shrug Right or wrong regarding the content, you're not a one-person-army out there to single handedly defeat all the wrong-doers on HN. If you're just here to tell people they're flat out wrong, rather than actually have a conversation, you're just spamming the thread.
dragonwriter 9y ago
> You're right, the NLRB isn't settling the science. It's saying that discussion of the science renders otherwise protected speech unprotected No, its saying that the specific manner in which Damore discussed the matter, in the context in which he did (including the specific provisions of Google's pre-existing anti-harassment policy), and the actual effects it had in the workplace, meant that even if the purpose of the speech was the kind protected under the NLRA, the actual actions were not. > and effectively removing workers' legal right to engage in science-based discussion of whether a 50/50 gender ratio is the appropriate goal While there is a protected right to labor organizing, it is not an unrestricted right to workplace debate over employer policy goals, even before the kind of conflict with unrelated (to labor organizing) policy at issue here. The NLRB memo did not address the question if whether Damore was otherwise within the bounds of protected labor organizing, it merely found that even assuming his speech met the purpose requirements for labor organizing, Google was within it's rights to fire him based on the specific grounds they cited.

tptacek 9y ago

You don't have a legal right to engage in science-based discussion of anything at your workplace! Damore's claim is subtly different. He relies on the fact that you do, under the NLRA, have the right to organize to change workplace conditions. But your right to do that is enforceable only through the NLRB, is an exception to at-will employment, and is trumped by federal and state EEO laws. When employee organizing conflicts with employer legal compliance, the employer's low burden to justify a termination is even lower.

leereeves 9y ago
If we have a legal right to discuss something at work, we should also have a legal right to a science-based discussion of that topic. The Advice Memo seems to agree that discussion of Google's diversity program was protected speech, until it strayed into scientific findings that some people found offensive.
- tptacek 9y ago
  I think you're still not getting it. You don't have the legal right to discuss things at work without termination. Blanket federal employment law says that there is a powerful presumption in favor of the employer when terminating employees. They can fire you for what you say. They can fire you for dying your hair the wrong hair color. They don't need a good reason. You need a good reason if you're going to contest a termination.
  - leereeves 9y ago
    The NLRB referred to some things employees do have a legal right to discuss without termination: > expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs, which were likely protected Damore's memo was critical feedback about Google's diversity policy. The inclusion of certain controversial scientific findings is perfectly reasonable in this context.
    - tptacek 9y ago
      The Advice Memo was signed and attributed to a 30-year veteran of the NLRB, and the content of the memo was signed off on by the NLRB's GC, who is a Trump appointee. They disagree with you.
joshuamorton 9y ago
And I may be reading a bit too much into the "ruling", but I expect that their decision would have held even if employees did have a right to engage in "science based discussion" as GP posits. That's why they cite the Honda ruling. Essentially even if the content is not a-priori problematic, the way it is presented was.
- leereeves 9y ago
  Once again I'm not positing a right to "science-based discussion". I'm saying the right to discuss workplace issues, granted by the NLRA, should include science-based discussion of these issues.
  - joshuamorton 9y ago
    It does. So far, about 4 people have explained this across many threads, and you still don't seem to acknowledge it. Edit because rate limited: The problem is not what was said, necessarily, but the way in which it was said. Hence citing the Honda ruling. This is at least my, not-a-lawyer interpretation. That is, just because you are saying something to discuss workplace issues does not give you the right to say literally anything. Sufficiently disruptive discussion of workplace issues is still disruptive enough to merit a response, not because of the content, but because it is disruptive. Apparently the NLRB draws the line for sufficiently disruptive somewhere before "results in the demonstrated loss of multiple perspective candidates".
    - leereeves 9y ago
      Several people have claimed that. I dispute that claim because that's not what I see in the memo. > the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected. Notice the reason the NLRB gave in this statement for why they are unprotected: not because they are unrelated to the discussion of workplace issues, but because they are offensive.
      - andrewprock 9y ago
ankushnarula 9y ago
The Advice Memo clearly implies skepticism at Damore's intent and the sources own which he relied. It sets the precedent for successful EEO claims against any venue where the content contravenes similar social justice based codes of conduct and employment agreements. Damore's top line argument was that these diversity programs are causing reverse discrimination, workplace hostility, and monoculture. The rest of what he wrote was descriptive and prescriptive. And bear in mind, EEOC also has a mandate to protect employees who file their concerns over discrimination. I believe the active class action discrimination lawsuit against Google could be a stepping stone to break up this kind of EEOC precedent.
ncallaway 9y ago
> You don't have a legal right to engage in science-based discussion of anything at your workplace! This is the point that I think most people aren't getting. It seems like people are starting from the position that one should be able to have free and open conversations in the workplace. That a company shouldn't be able to fire an employee for dissent. But this is _absolutely_ not the case with at will employment. If you say just about _anything_ in the workplace (or not at the workplace!) that your employer doesn't like they can terminate you. I think the quoted sentence is the key to understanding this all. Your 1A rights only protect you from the government. Your employer may not—and does not have to—tolerate a "marketplace of ideas"
- leereeves 9y ago
  This is probably worth repeating: According to the NLRB, the National Labor Relations Act grants workers the legal right to discuss work-related issues with each other. https://www.nlrb.gov/rights-we-protect/employee-rights https://www.nlrb.gov/rights-we-protect/employee-rights This comes from Section 7 of the National Labor Relations Act: "Employees shall have the right to...engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." In this specific case, the Advice Memo refers to protection for "expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs".
  - ncallaway 9y ago
    Yes, and the specific details of this case are not protected by the NLRA. Also according to the NLRB.
    - leereeves 9y ago
      Yes, we all agree that's what the NLRB said. We're discussing how they came to this conclusion. The lawyer who wrote this memo argued that Damore's statements would normally be deserving of protection, if they weren't so offensive.

ewjordan 9y ago

Damore has basically 3 points in his memo, in increasing order of disputability: 1) Conservatives are discriminated against at Google, which is a problem for working conditions 2) Google pushes an aggressive voluntary affirmative action policy which aims to hire women and underrepresented minorities at rates much higher than they appear in the relevant sector of the workforce, and the way this is pushed internally is a problem for working conditions 3) The reason women are underrepresented in the tech job market is biology Notice that 3) has nothing to do with working conditions, it's just an elaboration on why 2) upsets Damore so much; it could have been left out and he would have been covered under the exemption, while still making his point about working conditions and hiring policies. People within Google are totally free to disagree about whether a 50/50 gender ratio is an appropriate goal, and they are protected under this law as far as protesting those goals as they relate to working conditions. But the ruling says that the specific arguments you bring into play may still be in violation of company policy, and such arguments are not automatically protected by virtue of being connected to a working conditions complaint. Especially when they could be construed as hurting a company's ability to abide by laws regarding hostile work environments. There's probably room for disagreement about the correct interpretation of the law, but I don't see it as a matter of removing the right to discuss freely, it's merely a tight technical interpretation of where the at-will exemption ends.

leereeves 9y ago
Why do you separate 2 and 3? Point 3 is Damore's detailed criticism of point 2. He's arguing (clumsily) that the goals of the policies in point 2 conflict with certain scientific research.
- tptacek 9y ago
  Because in the course of making point 3, he violated Google's anti-harassment policies, and the NLRB defers to companies as to the reasonableness of their anti-harassment policies, because a different federal law that NLRB does not manage requires companies to have anti-harassment policies. If he'd been arguing for better office furniture and Google claimed to fire him over violations of an anti-harassment policy, the NLRB would almost certainly not defer to Google. But he wasn't arguing for better office furniture; he was arguing about biological differences between men and women and how they might impact the distribution of male and female engineers at Google.

jxdxbx 9y ago

There is no such “legal right” to discuss things in the workplace. Where do you get that from? Maybe there should be one, but there isn’t.

leereeves 9y ago
According to the NLRB, the National Labor Relations Act grants workers the legal right to discuss work-related issues with each other. https://www.nlrb.gov/rights-we-protect/employee-rights https://www.nlrb.gov/rights-we-protect/employee-rights This comes from Section 7 of the National Labor Relations Act: "Employees shall have the right to...engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." In this specific case, the Advice Memo refers to protection for "expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs".
- shadowmint 9y ago
  Have you considered the reason you keep getting the same response to all of your posts in this thread is perhaps because you keep making the same assertions in slightly different ways? Calm down dude; we get it. You don't have to post the same comment over and over again to make your point. You'll have a make more meaningful conversation if you stick to one thread and actually engage rather than just copy/paste your reply.
  - leereeves 9y ago
    When more than one person makes the same provably false claim, such as "There is no such “legal right” to discuss things in the workplace", isn't it worth correcting more than once?
    - shadowmint 9y ago
      Unfortunately posting more or less the same comment in many threads just makes other people do exactly the same thing in frustration and destroys the entire comment thread with copy-paste wars. It's bad forum etiquette everywhere, not just on HN, and it ruins the conversation for everyone. > When more than one person makes the same provably false claim /shrug Right or wrong regarding the content, you're not a one-person-army out there to single handedly defeat all the wrong-doers on HN. If you're just here to tell people they're flat out wrong, rather than actually have a conversation, you're just spamming the thread.

dragonwriter 9y ago

> You're right, the NLRB isn't settling the science. It's saying that discussion of the science renders otherwise protected speech unprotected No, its saying that the specific manner in which Damore discussed the matter, in the context in which he did (including the specific provisions of Google's pre-existing anti-harassment policy), and the actual effects it had in the workplace, meant that even if the purpose of the speech was the kind protected under the NLRA, the actual actions were not. > and effectively removing workers' legal right to engage in science-based discussion of whether a 50/50 gender ratio is the appropriate goal While there is a protected right to labor organizing, it is not an unrestricted right to workplace debate over employer policy goals, even before the kind of conflict with unrelated (to labor organizing) policy at issue here. The NLRB memo did not address the question if whether Damore was otherwise within the bounds of protected labor organizing, it merely found that even assuming his speech met the purpose requirements for labor organizing, Google was within it's rights to fire him based on the specific grounds they cited.