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By Douglas Moran

Damore's Google Memo NLRB Complaint Rejected: More misrepresentations

Uploaded: Feb 17, 2018

James Damore was fired for an internal memo he wrote about Google diversity programs and political biases. The NLRB (National Labor Relations Board) effectively rejected his complaint--he reportedly withdrew it after seeing a memo from the NLRB staff recommending rejection.

I have written here twice about the Damore memo and his firing because it is a good example of the declining ability to hold honest debate on important issues.(foot#1) The memo was carefully written and was the sole basis for the subsequent debate, thereby making for a very clean debate: no prior context, no competing sources.

The topic here is honest debate -- discussions of the merits of the memo's contents are off-topic.

Important notes: When I refer to the Damore memo "Google's Ideological Echo Chamber: How bias clouds our thinking about diversity and inclusion", I am referring to the publicly available version, which is purported to be the version that led to Damore's firing (minus the initial section "Reply to public response and misrepresentation"?). By all accounts, this memo when through many drafts making improvements, including incorporating suggestions from other employees. The NLRB Advice Memo is an administrative law document, and I will be assuming that it was carefully drafted. I am not a lawyer, nor do I make any pretense at having expertise in the law, so I may miss situation where the legal language differs significantly from normal English. I am omitting the corresponding qualifiers with the expectation that the reader will know to insert them.
I have made substitutions within quotes, replacing obvious redaction and changing "The Employer" to "Google" and "Charging Party" to "Damore". Unfortunately the usual means for marking such - square brackets - can't be used in this blogging software, and curly and angle brackets also have problems. Consequently, I chose to use carets ("^").

Disclaimer: I have no connections, current or past, to Google or Damore. My interest in this case is only as an illustration of more pervasive issues.

The opening (summary) paragraph indicates a strong bias against Damore.
Recognize that the bias might be to favor the employer over the employee, or it might be a bias from political ideology.
NLRB memo: "Assuming, arguendo^^for the sake of argument, but not directly bearing on the remainder of the discussion^^, that ^Damore^'s conduct was concerted and for the purpose of mutual aid and protection, we conclude that the memorandum included both protected and unprotected statements and that the Employer discharged ^Damore^ solely for ^Damore's^ unprotected statements."
I would paraphrase this as "We have no evidence of this, but it will be the foundation of our decision." Furthermore, in reading the Damore memo I spotted no discontinuities indicating protected statements had been shoehorned in.

The opening sentence is "...whether...when ^Damore^ circulated a memorandum in opposition to the Employer's diversity initiatives..." Uh, no. He didn't oppose the initiatives, but rather criticized certain components of those initiatives as being potentially illegal, ineffective and counter-productive (my words). And the Damore memo has a top-level section entitled "Non-discriminatory ways to reduce the gender gap". And the memo's subtitle is "How bias clouds our thinking about diversity and inclusion". So the NLRB memo decides that suggestions for improvement constitute opposition? However on page 2, the NLRB characterization of the memo changes to "outlining ^Damore's^ concerns about the effectiveness and necessity of the Employer's programs..." and "specific critiques of many of the Employer's inclusion and diversity policies" (critiques are not opposition), and "a long list of suggestions to correct...".
So the recommended decision of the NLRB memo is in conflict with its body.

Further down page 2 of the NLRB memo states "^Damore^ also argued that there were immutable biological differences between men and women that were likely responsible for the gender gap in the tech industry at large and at the Employer in particular, ...".
Doubly wrong. First, genetic predisposition is not the same as "immutable", and the differences under discussion were only weakly correlated to gender. Second, the Damore memo attributed only some of the gap to gender differences and argued that some of the gap was the result of ineffective measures at Google. Note: Google itself acknowledges the effect of gender differences and attribute much of the gap to "the pipeline" -- only 20% of college graduates in Computer Science are women.(foot#2)

The NLRB staff apparently used a version of the memo different from the public version because the NLRB memo cites contents that are not in the public version of the memo.(foot#3) This is strange because this non-public version of the memo is "the version of the document upon which the Employer based its investigation". Yet, Google's CEO (and YouTube's CEO??) have stated that they cut short his vacation to address the reaction to the Damore memo that had become public. Recognize that that and earlier versions of the memo had been circulating inside Google for some time.
The other explanation is that the NLRB staff wasn't working from the Damore memo itself, but another party's representation of the memo.

Guilt based upon unwarranted perceptions of others:
NLRB memo, page 3: "On the Employer determined ^sic^ that certain portions of ^Damore's^ memorandum violated existing policies on harassment and discrimination." Neither Google nor the NLRB attempt to explain what harassment or discrimination by Damore occurred. Up until now, US law has been based upon actions and intent, but there is a shift attributing to people what others perceive as their intent, not matter how unwarranted and fallacious such perceptions are.(foot#4) We are also seeing an attitude that accusations equal proof, or as the Red Queen in Alice's Adventures in Wonderland said "Sentence first--verdict afterwards."

A disturbing trend over the past few years has been to equate expressing an opinion to committing physical violence against people with different views (words are violence). This is most prominently seen in the anti-Free Speech demonstrations and violence on college campuses, but it is now being seen in the wild. For example, opposition to having a law to compel the usage of the "preferred pronouns" of transgender individuals is being characterized by advocates as "threatening the existence" of transgender people. The NLRB memo (page 5, middle of paragraph 2) cites Google reporting that the Damore memo made employees "feel unsafe at work".

NLRB memo on page 5: "^Damore's^ use of stereotypes based on purported biological differences between men and women ..."
Doubly false. First, the definition of stereotype is "a widely held but fixed and oversimplified image or idea of a particular type of person or thing." Damore's memo does not use stereotypes, but presents differences as distributions that have large overlaps and "Many of these differences are small and there’s significant overlap between men and women, so you can’t say anything about an individual given these population level distributions." (bottom of page 3). The Damore memo goes on to say "I'm also not saying that we should restrict people to certain gender roles; I'm advocating for quite the opposite: treat people as individuals, not as just another member of their group (tribalism)." So the NLRB memo attributes to Damore the polar opposite of what he said.

The NLRB memo further displays its bias with "notwithstanding effort to cloak ^his^ comments with 'scientific' references and analysis, and notwithstanding ^his^ 'not all women' disclaimers." First, I didn't find a single "not all women" phrase, or anything close, in the Damore memo. Second, I find the NLRB's rejection of replicated, peer-reviewed science as a disturbing, but unsurprising, sign of the times.

The NLRB memo's conclusion (bottom of page 5) is that "The Employer demonstrated that ^Damore^ was discharged only because of ^his^ unprotected discriminatory statements and not for expressing a dissenting view on matters affecting working conditions or offering critical feedback of its policies and programs, which were likely to be protected." So, Damore was discharged not for what was in his memo, but for what various Google employees and applicants falsely believed was in the memo.
Heck of a job, NLRB.

Google's decision to fire:
The NLRB memo on page 3 provides part of the statement that Google made to Damore when firing him. Its first sentence is, unsurprisingly, false: "Your post advanced and relied on offensive gender stereotypes to suggest that women cannot be successful in the same kinds of jobs at Google as men."
Stereotypes: see above. "women cannot": No. He said differences could lead to (small) differences in the proportion of women (high or low) in a particular job.
This false claim became a frequent part of the media coverage.

The end of this Google statement includes the protected-unprotected rationale reflected in the NLRB memo's decision.

So how did Google respond to actual harassment?
The NLRB memo cites a related case of a Google employee who sent Damore an email promising a campaign of harassment ("hounding") for which "The employee was issued a final warning" (page 2, end of paragraph 2 and footnote). In a case of "blaming the victim", the NLRB sides with Google in portraying this as appropriate discipline: Being targeted with misrepresentations and false perceptions is a fire-able offense, but an actual threat is far less serious.

Harm to Google?
NLBR memo (page 2, end of paragraph 2): "at least two female engineering candidates for employment withdrew from consideration, citing the memo as their reason for doing so." My inference is that these candidates reacted based upon articles that misrepresented the memo, and didn't bother to check the primary source. How is this different from an applicant who can't be bothered to do any research on the potential employer's business? In either case, I wouldn't hire them. And since Google has so many clamoring to work there that they turn away many highly qualified candidates, how did the loss of those two harm Google?

Other resources: Because I sensed that the Damore case might have continuing importance, I collected links as I encountered them. This collection lacks niceties because it was intended for my own reference.

Off-topic: I fully expect that some will ignore my declaration that the gender gap is off-topic, and thus subject to deletion on that ground. If you decide to do so anyway, please address the fundamental contradiction of the ideology: "It is important to have gender diversity in the workplace because women are different from men and bring many different skills, aptitudes, approaches, perspectives ..." vs. "Because women are no different from men, the cause of any gender gap must be bias and discrimination."
And explain what the substantial difference would occur when the proportion of women at Google moves from 49% to 50% or more (recognize that it is the advocates arguing that anything less than 50% is unacceptable).

----Footnotes----
1. Damore's Memo: earlier discussion here:
- "Google memo": a lesson in not trusting news media, 2017-08-09.
- This time we're not lying. HONEST! No, really!, 2018-01-19. Non-clickbait headline: "Highly partisan media, the Gell-Mann Amnesia Effect & examples from my history."

2. Google on the gender gap:
Revolution: Google and Youtube Changing the World (47:19) - MSNBC, 2018-01-26.
Google CEO Sundar Pichai and YouTube CEO Susan Wojcicki join Recode's Kara Swisher and MSNBC's Ari Melber for a special town hall to discuss the challenges and successes of tech's disruption of the workplace, and what it means for the future of the country.
My experience with this video is that it is painful slow to load and borders on being unresponsive to attempts to skip forward or back.
Note: Kara Swisher was the author of early articles that established the false narrative about the Damore memo. MSNBC business model targets a highly partisan and ideological audience. So expect strong ideological biases.
The segment on the pay gap and Damore begins at roughly 12:45.

3. NLRB citations not in the public version of the memo:
From page 2, paragraph 3: Quotes: "top of the curve", "less-selective". Also, there were what I read to be paraphrases for which I didn't find corresponding passages.

4. Perceptions, not actions or intent: In 2007, a university student/janitor was reading the book "Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan" whose cover art included two burning crosses. A formal complaint was filed against him. His union and the university administration made an initial determination that the presence of this book in the workplace constituted racial harassment. Fortunately, the forces of sanity and light were then still powerful enough to get the university top leaders to overturn this decision. It is a measure of how far we have sunk in the subsequent decade that today we see the NLRB willing to approve of his being fired.
The news article "University says sorry to janitor over KKK book: Keith John Sampson was accused of racial harassment for reading the book" NBC News (2008-07-15) is the first of many in Google search.

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An abbreviated index by topic and chronologically is available.

----Boilerplate on Commenting----
The Guidelines for comments on this blog are different from those on Town Square Forums. I am attempting to foster more civility and substantive comments by deleting violations of the guidelines.

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