Last year it was Google.  This year it is Facebook where industry norms of celebrating all forms of diversity—except that of thought—are being challenged. Brian Amerige, a senior software engineer at the company, has authored a document entitled “We Have a Problem with Political Diversity” in which he presents his concerns:

We are a political monoculture that’s intolerant of different views.  We claim to welcome all perspectives, but are quick to attack—often in mobs—anyone who presents a view that appears to be in opposition to left-leaning ideology.  We throw labels that end in *obe and *ist at each other, attacking each other’s character rather than their ideas.

We do this so consistently that employees are afraid to say anything when they disagree with what’s around them politically.  HR has told me that this is not a rare concern, and I’ve personally gotten over a hundred messages to that effect.  Your colleagues are afraid because they know that they—and not their ideas—will be attacked.  They know all the talk of “openness to different perspectives” does not apply to causes of “social justice,” immigration, “diversity,” and “equality.”  On this [sic] issues, you can either keep quiet or sacrifice your reputation and career.

Amerige went on to form an internal discussion group for employees who are “interested in helping make Facebook a company that’s more tolerant and active-minded about different political and ideological perspectives.” The group’s most important rule is that “if you attack a person’s character, rather than their ideas, you will be banned.”  Over 100 other employees have joined the group.  So far, Amerige has not been fired from Facebook as James Damore was fired from Google a year ago.

It is easy to see this case as a simple matter of history repeating itself, yet there are key differences between the two cases, due to which, Amerige is poised to challenge the industry to tolerate political dissent.

The federal law concerning the right—or lack thereof—of Damore and Amerige to have the discussions that they had in the workplace is the National Labor Relations Act (NLRA).  Section 7 of this statute grants all employees in the United States the right to engage in what is known as protected concerted activity, joining together with their colleagues to advocate for improvements to their working conditions:

Employees shall have the right to self-organization…and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…

With over 100 other employees joining Amerige, there is no question that his activity is concerted. But is it protected?

The NLRA is enforced by the National Labor Relations Board (NLRB), a government agency with quasi-judicial powers to rule on whether an employer has violated the rights of its employees.  Damore filed a complaint last year claiming that his document constituted protected concerted activity and received a ruling from the NLRB that it did not. (Damore has subsequently filed a lawsuit—still pending—against Google, alleging that the company violated his rights under California state law.) After describing past cases in which employees “made debasing and sexually abusive remarks” or told a colleague to “come out of the closet” and in which the NLRB found this conduct to be unprotected on the grounds that it constituted discriminatory harassment, it ruled that Damore’s document was comparable:

The Charging Party’s use of stereotypes based on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases. [His] statements about immutable traits linked to sex—such as women’s heightened neuroticism and men’s prevalence at the top of the IQ distribution—were discriminatory and constituted sexual harassment, notwithstanding [his] effort to cloak [his] comments with “scientific” references and analysis, and notwithstanding [his] “not all women” disclaimers.

This ruling ought to send a chill down the spine of anyone who believes in free speech and an open society where scientific inquiry can be pursued without being stifled by dogma.  There is also a strong case to be made that it is legally wrong.

The Supreme Court has ruled that simply making a statement that a colleague finds offensive is not enough to constitute sexual harassment.  Rather, “it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’”¹ While the Court has held that derogatory statements about an employee’s gender can constitute sexual harassment, the case in question concerned remarks that were directed at a specific individual for the purposes of disparaging her, for example “You’re a woman, what do you know,” and “We need a man as the rental manager.”²  It is not alleged that Damore or any other Google engineer ever made such comments to their female colleagues, much less that such behavior took place on an ongoing, sustained basis as to qualify as “severe or pervasive.”  Indeed, the repeated denigration and even threats of violence against men and other “privileged” groups that were revealed at Google by Damore’s lawsuit are far more comparable to the comments about women that the Supreme Court held to constitute sexual harassment.

One can only wonder if the NLRB would reach the same conclusion if an employee was fired for discussing scientific research finding that innate factors account for or contribute to more men than women engaging in violence or having developmental disabilities.  Or is it only women who are seen as so fragile that it is necessary to censor scientific research the conclusions of which might be used to view their gender in anything other than the most positive light?  If it is the latter, then that is itself a discriminatory act that, coming from a government agency, would violate the equal protection clause of the Fourteenth Amendment.

To equate scientific research with harassment that is prohibited by law is a dangerous precedent. The NLRB places the word “scientific” in scare quotes, seemingly to imply that the research that Damore cites is not valid science. Yet, it is not the role of bureaucrats in the federal government with no scientific background to rule on what is or isn’t valid science.  The consensus of four scientists writing in Quillette at the time was that Damore’s presentation of the research was accurate.  The psychology professor Jordan Peterson of the University of Toronto also concurred.  Yet even if those ruling on the validity of Damore’s hypotheses were to be scientists, it would still be anti-scientific to censor dissenting views.  Those with the best credentials do not necessarily always hold the truth.  The great physicist Albert Einstein formulated his special theory of relativity not as a professor but while working as a clerk at the Swiss patent office.³

Several centuries earlier, Galileo Galilei was brought before the Inquisition and sentenced to a lifetime of house arrest for presenting the results of his research showing that the earth revolves around the sun.⁴  The First Amendment was adopted precisely to prevent this type of abuse of power, where the right of individuals to speak their mind freely as they see fit is suppressed when it is inconvenient for those in positions of authority, whether it be the Roman Catholic Church or 21^st century diversity bureaucracies.  We have clearly progressed in that the sanctions at stake are solely economic and do not involve execution or (at least in the United States) imprisonment.  Yet, if we believe that we have moved beyond the mindset that gave rise to this sort of suppression, then the handling of cases such as this ought to give us reason to think twice.

Despite the deeply flawed reasoning that the NLRB used to permit Google to fire Damore, this decision does not necessarily mean that it would be permissible for Facebook to fire Amerige.  The NLRB was very explicit that Damore’s discussion of scientific research was the only portion of his document that they were holding to be unprotected:

The Employer demonstrated that the Charging Party 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 protected.  The Employer carefully tailored the message it used in discharging the Charging Party, as well as its follow-up message to all employees, to affirm their right to engage in protected speech while prohibiting discrimination or harassment.

Thus, if Damore had omitted the portions of his document discussing biological differences between the sexes and solely discussed the ways in which the working conditions at Google are hostile to employees of conservative political persuasions and his opposition to its affirmative action policies, then his document would have constituted protected concerted activity, and it would have been illegal for Google to fire him for it.  This is exactly what Amerige has done at Facebook.

Therefore, Amerige’s document makes an ideal test case to force the issue.  The executives at Facebook now have a choice before them: whether or not to fire or otherwise discipline Amerige.  If they choose not to, then dissent will continue to be expressed within their ranks, and they will have to contend with the reality that their workplace culture oriented toward “social justice” is not inclusive of all reasonable people as they portray it to be. Employees at other technology companies may be emboldened to take similar action at their workplaces, sending ripples throughout Silicon Valley and helping to alert the public to the serious problems that exist within our industry.

If they do choose to fire him, then he will be able to file a complaint with the NLRB and make a strong case that his firing is illegal, with the Damore decision as a precedent on his side.  This will force the NLRB to show its true colors: Were they acting in good faith and applying the law as they interpreted it, however severely misguided that interpretation might be?  Or were they simply concocting a justification for the firing to avoid upsetting social justice activists, only to overturn that precedent a year later when it ceased to be useful for that purpose?  If it is the latter, then the American people should recognize this for what it is and demand that our government uphold the rule of law under an objective standard.

References:
¹ Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
² Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)
³ Isaacson, Walter.  Einstein: His Life and Universe.  New York: Simon & Schuster; 2008.  704 p.
⁴ Bachrach, Deborah.  The Inquisition.  San Diego (CA): Lucent Books; 1995.  127 p.