2 ms·

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.
- ncallaway 9y ago
  They didn't say that. The lawyer who wrote this memo argued that Google had wide latitude in determining what qualified as sexual-harassment. They had a policy that pre-dated this incident such that those statements qualified. The NLRB didn't determine that the statements were offensive. They determined that Google was operating in a reasonable manner when Google decided that those statements were offensive.
  - leereeves 9y ago
    Perhaps it would be helpful if we cite the statements we're referring to. Which statement do you interpret as saying "Google had wide latitude in determining what qualified as sexual-harassment"? In at least one statement which I've quoted here too many times already ("so harmful, discriminatory, and disruptive as to be unprotected"), the lawyer who wrote this memo expressed their own opinion that these statements were too offensive to be protected.
    - ncallaway 9y ago
      > the Employer determined that certain portions of the Charging Party’s memorandum violated existing policies on harassment and discrimination > The Employer has a legitimate, lawful policy prohibiting race and sex discrimination and harassment in its workplace. > An employer’s good-faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws > Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions
      - leereeves 9y ago
        This seems like an interesting discussion to continue, weighing the deference the memo mentioned to the employer's policy against the fact that they ultimately make their own determination (which they must, of course, make to avoid abusive or spurious claims of harassment). Sadly, I'm too tired to continue right now. Perhaps another time.
        ncallaway 9y ago
        I think Popehat (a fairly respected defense lawyer and first amendment blogger) has a fairly good write up of the NLRB memo and what it's ruling says here: https://www.popehat.com/2018/02/20/lawsplainer-the-nlrb-damore-memo/ https://www.popehat.com/2018/02/20/lawsplainer-the-nlrb-damo...
- dragonwriter 9y ago
  > The lawyer who wrote this memo argued that Damore's statements would normally be deserving of protection, if they weren't so offensive. Incorrect; the memo assumed (did not conclude) [0] that Damore’s memo was entirely within the protected purpose, and concluded that even given that assumption, the particular elements within it, for which Google claimed to have fired him, were within the bounds of what Google could fire him for, given their legitimate, pre-existing policy. A legal decision memo (or a court decision) will often assume a point not because it finds it well supported, but because a dispositive answer to the legal question can be reached without resolving the point on which the assumption is made, and courts and lawyers often prefer to avoid resolving subissues that are unnecessary to resolve in order to resolve the actual question they are posed with. So it did not argue that Damore’s memo would have been protected but for the identified problematic elements. [0] key language: “Assuming, arguendo, that the Charging Party’s conduct was concerted and for mutual aid and protection, [...]” (p.3)

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.

ncallaway 9y ago
They didn't say that. The lawyer who wrote this memo argued that Google had wide latitude in determining what qualified as sexual-harassment. They had a policy that pre-dated this incident such that those statements qualified. The NLRB didn't determine that the statements were offensive. They determined that Google was operating in a reasonable manner when Google decided that those statements were offensive.
- leereeves 9y ago
  Perhaps it would be helpful if we cite the statements we're referring to. Which statement do you interpret as saying "Google had wide latitude in determining what qualified as sexual-harassment"? In at least one statement which I've quoted here too many times already ("so harmful, discriminatory, and disruptive as to be unprotected"), the lawyer who wrote this memo expressed their own opinion that these statements were too offensive to be protected.
  - ncallaway 9y ago
    > the Employer determined that certain portions of the Charging Party’s memorandum violated existing policies on harassment and discrimination > The Employer has a legitimate, lawful policy prohibiting race and sex discrimination and harassment in its workplace. > An employer’s good-faith efforts to enforce its lawful anti-discrimination or anti-harassment policies must be afforded particular deference in light of the employer’s duty to comply with state and federal EEO laws > Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions
    - leereeves 9y ago
      This seems like an interesting discussion to continue, weighing the deference the memo mentioned to the employer's policy against the fact that they ultimately make their own determination (which they must, of course, make to avoid abusive or spurious claims of harassment). Sadly, I'm too tired to continue right now. Perhaps another time.
      - ncallaway 9y ago
        I think Popehat (a fairly respected defense lawyer and first amendment blogger) has a fairly good write up of the NLRB memo and what it's ruling says here: https://www.popehat.com/2018/02/20/lawsplainer-the-nlrb-damore-memo/ https://www.popehat.com/2018/02/20/lawsplainer-the-nlrb-damo...
dragonwriter 9y ago
> The lawyer who wrote this memo argued that Damore's statements would normally be deserving of protection, if they weren't so offensive. Incorrect; the memo assumed (did not conclude) [0] that Damore’s memo was entirely within the protected purpose, and concluded that even given that assumption, the particular elements within it, for which Google claimed to have fired him, were within the bounds of what Google could fire him for, given their legitimate, pre-existing policy. A legal decision memo (or a court decision) will often assume a point not because it finds it well supported, but because a dispositive answer to the legal question can be reached without resolving the point on which the assumption is made, and courts and lawyers often prefer to avoid resolving subissues that are unnecessary to resolve in order to resolve the actual question they are posed with. So it did not argue that Damore’s memo would have been protected but for the identified problematic elements. [0] key language: “Assuming, arguendo, that the Charging Party’s conduct was concerted and for mutual aid and protection, [...]” (p.3)