In the latest news of Silicon Valley men behaving badly, a Google employee recently released a manifesto against diversity. I represent employees who sue their employers for workplace discrimination and I advise companies on how to comply with the law. So, (outrage over the manifesto aside) my thoughts immediately turned to the legal implications of the manifesto, and Google’s response to it. That response is, from a legal perspective, shockingly ill-conceived.
The manifesto makes a number of sexist assertions that revolve around two themes: 1) women have certain biologically determined traits that explain why they are not equally represented in tech leadership; and 2) Google’s refusal to consider that biology, rather than bias, accounts for gender disparities reflects an intolerance for ideas that do not fit its “leftist ideology.” It went viral within the company.
Google’s new Vice President of Diversity, Integrity & Governance issued a statement in response, which included the following comments:
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 antidiscrimination laws.
To put Google’s response in the proper context, I have listed here direct quotes of some of the “alternative views” expressed in the manifesto:
- “Women on average are more prone to anxiety.”
- “Women on average look for more work-life balance while men have a higher drive for status on average.”
- “In addition to the Left’s affinity for those it sees as weak, humans are generally biased towards protecting females. As mentioned before, this likely evolved because males are biologically disposable and because women are generally more cooperative and agreeable than men.”
Thus, Google’s response suggests that a “discourse” rife with gender stereotypes can “work alongside” antidiscrimination laws. In fact, antidiscrimination laws prohibit a work environment where people “feel safe” sharing views based on gender stereotypes.
Frequent or widespread sharing of discriminatory “opinions” can amount to actionable harassment.
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on “race, color, religion, sex, or national origin.” Under Title VII, even when an employer does not terminate, demote or reassign an employee, it can nonetheless discriminate if it creates or condones a hostile work environment. A hostile work environment exists when a “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive” to alter the conditions of the victim’s employment.”
Stray remarks are not enough. But a widespread workplace discussion of whether women engineers are biologically capable of performing at the same level as their male counterparts could suffice to create a hostile work environment. As another example, envision the racial hostility of a workplace where employees, as Google put it, “feel safe” to espouse their “alternative view” that their African-American colleagues are not well-represented in management positions because they are not genetically predisposed for leadership roles. In short, a workplace where people “feel safe sharing opinions” based on gender (or racial, ethnic or religious) stereotypes may become so offensive that it legally amounts to actionable discrimination.
Employers have a duty to prevent, and promptly correct, discriminatory behavior.
What’s more, an employer’s responsibility to address a hostile work environment in no way jives with Google “fostering a culture in which those with alternative views . . . feel safe” when those alternative views amount to offensive gender stereotypes. Rather, an employer has a legal defense to a hostile work environment claim if it can show that it exercised reasonable care to prevent and to promptly correct the discriminatory behavior. Reasonable care in this context typically means the employer must both prohibit offensive remarks and address them when someone complains. If, on the other hand, an employer fosters a culture where employees feel safe expressing offensive stereotypes, then it has utterly failed to exercise the reasonable care the law requires.
Even one comment may suffice to suggest unlawful discrimination played a part in employment decisions.
Finally, even if a single employee makes a single remark based on a gender stereotype, every employment-related decision that employee participates in becomes suspect. Such statements evidence bias, and therefore suggest that gender discrimination played a part in the employee’s decisions or recommendations. And when a plaintiff is able to prove that gender discrimination played a role in an employment decision, the burden then shifts to the employer to prove that it would have made the same decision even if it had not taken the plaintiff’s gender into account. In the case of the employee who wrote the manifesto, that burden could be heavy indeed in light of the blatant offensiveness of its contents.
In light all of this, Google’s response is, from a legal standpoint, baffling. From the standpoint of a woman, it is profoundly disappointing. Google, I assume, has a host of competent employment lawyers. It knows better, and it should do better.