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Legal Background Might Have Shaped Incentives for Google In Memo Case

Walter Olson

Because Google and Silicon Valley are cutting-edge workplaces,
there’s a tendency to assume that the premise of the Google memo furor – “Your erroneous opinions
are making my work environment hostile” — is somehow new as

But it isn’t the least bit new. The application of hostile work
environment law to workplace speech — including basically
political or ideological discussions, not just vulgar jokes or
unwanted personal talk — goes back decades.

I had a chapter on it 21 years ago in my book on employment law,
The Excuse Factory. Others wrote about it
then and earlier.

Hostile-environment law
is not content-neutral. It plays favorites on topics and it takes
sides in debates.

Jonathan Rauch, for example, in the New Republic in
1997, wrote that “quietly, gradually, the workplace
has become an exception” to the general rule that in America the
law does not seek to restrain wrongful opinion and expression.

And Rauch explained the indirect mechanism by which this has
come to pass: “What the government cannot do directly, it now
requires employers to do in its stead: police ‘discriminatory’

Now, as then, government pressure on employers to ban speech
consists less of direct you-must-ban mandates and more of
litigation incentives whose contours are not explicitly

Legal or HR departments will counsel an employer that allowing
certain instances or categories of bad speech to go undisciplined
might be an offense under Title VII anti-discrimination law, or evidence of

Some enforcement of these laws is done directly by federal
agencies, but most of it takes the form of civil lawsuits by
disgruntled workers or class action lawyers.

Litigation is costly and hazardous to employers. Companies will
expend significant effort to avoid it or to reduce its risk.

Taking steps against tasteless cartoons, or loose talk, such as
the discussion of whether there are any psychological or behavioral
differences between the sexes in the now famous Google memo, is
perceived as cheaper and safer than facing a lawsuit later.

Now, just as two decades ago, many outsiders look at a
firing-over-speech and say it’s just a private firm’s decision. No
public policy or First Amendment implications, right?

And it’s true that sometimes an employer’s decision to fire
would have been made even with no legal thumb on the scale. The
disruption caused by an instance of speech, or co-workers’ or
managers’ dislike for it, would have been enough. Other times legal
considerations did make the difference. Hard to tell the two cases

So as a way of evading responsibility system-wide it’s kind of
brilliant. Those who write laws can blame private actors’
decisions. The private actors in turn can feel as if their hands
were tied given the legal reality they might face.

All of this has been well sifted through by legal scholars. Law
professors David Bernstein, Eugene Volokh and others have written in depth
about how hostile-environment law works in practice — and its
tension with the First Amendment.

But I’ll stop to make just one point: hostile-environment law is
not content-neutral. It plays favorites on topics and it takes
sides in debates.

By 1997, when I wrote my book, there were already dozens of
reported cases in which liability claims cited anti-feminist
statements, such as generalizations, stereotypes and loaded
language about females.

The speech of this sort that got employers into legal hot water
was “frequently not at all obscene but often highly political and analytic in content.”

Meanwhile, a search then found not a single case in which the
reverse type of statement — generalizations, stereotypes, or
loaded language unfriendly toward males — had been ruled to
contribute to a hostile environment.

In the outside culture, debate continues about the extent to
which women’s under-representation in tech jobs is
owing to discrimination, and how much to individual women’s own
educational and career decisions. Within a given company like
Google, there is a real legal hazard in letting Side B in this
debate express its opinion, but no corresponding legal hazard in
letting Side A speak as forcefully as it likes.

Google is currently being sued on sex discrimination claims, which means
lawyerly caution would be at a zenith on whether to let its
corporate culture be portrayed in a future courtroom as tolerant of
sexist argumentation.

To sum up: don’t assume Google acted unusually. Under current
legal incentives, what just happened counts as normal.

Walter Olson
is senior fellow at the Cato Institute and author of several books
on the American legal system.