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Google CEO Slams Memo On Gender As Employee Reportedly Fired

File photo shows Google's headquarters in Mountain View, Calif. Jan. 3, 2013.
Associated Press
File photo shows Google's headquarters in Mountain View, Calif. Jan. 3, 2013.
Google CEO Slams Memo On Gender As Employee Reportedly Fired
Google CEO Slams Memo On Gender As Employee Reportedly Fired GUEST: Dan Eaton, partner, Seltzer Caplan McMahon Vitek

GOOGLE INCORPORATED IS PLANNING A SO-CALLED ALL HANDS MEETING THIS WEEK. ASSEMBLY IN THE ENTIRE SILICON VALLEY STAFF TO ADDRESS A CONTROVERSIAL MEMO IN THE FIRING OF THE CONTOUR DOSH CONTROVERSIAL MEMO WRITER. IT CHALLENGED THE DIVERSITY PROGRAMS MAKING CLAIMS AS WOMEN ARE MORE SUITED TO WORK IN SOCIAL AND ARTISTIC GUILT IN OUR NOSH NOT BIOLOGICALLY HIGH TECH. JOINING ME AS DAN EATON, A SPECIALIST IN BUSINESS LAW AND PARTNER AT BY TECH. GOOGLE SAYS IT FIRED THE SOFTWARE ENGINEER BECAUSE THE MEMO VIOLATED THE COMPANY'S CODE OF CONDUCT AND ADVANCED HARMFUL GENERAL DASHED GENDER STEREOTYPES. DO THEY HAVE THE RIGHT TO FIRE AN EMPLOYEE ON THOSE GROUNDS?YES, LET'S MAKE AN ASSUMPTION HE WAS NOT AN EMPLOYEE. AT WILL EMPLOYEE MEANS THAT GOOGLE HAS THE RIGHT TO FIRE THE EMPLOYEE FOR GOOD REASON OR NO REASON AT ALL. ON THE FACE OF IT, THEIR EXPLANATION FOR WHY THEY TERMINATED THE EMPLOYMENT WOULD BE LAWFUL.I'VE HEARD SOME PEOPLE SAY WHAT ABOUT HIS FIRST AMENDMENT RIGHTS? THERE IS VERY LITTLE FIRST AMENDMENT PROTECTION IN THE WORKPLACE?SURPRISINGLY WIDESPREAD MISCONCEPTION, THE FIRST AMENDMENT TO THE U.S. CONSTITUTION IS WHAT IS CALLED THE NEGATIVE RIGHT, TO SAY IT IS A RIGHT AGAINST INTRUSION BY THE GOVERNMENT AND DOES NOT APPLY TO PRIVATE ACTORS. INTERESTINGLY, THE PRIVACY RATE IN CALIFORNIA HAS BEEN HELD TO APPLY TO PRIVATE AND PUBLIC ACTORS. GENERALLY SPEAKING, WE ARE TALKING ABOUT THE RIGHT TO BE FREE OF GOVERNMENT INTERFERENCE AND EXERCISE RIGHTS. THAT IS NOT WHAT IS HAPPENING IN A PRIVATE WORKPLACE.THIS ENGINEER IS APPARENTLY CONSIDERING SUING GOOGLE OVER HIS FIRING. DO YOU THINK HE HAS A CASE?I LOOKED AT THE BASIS ON WHICH HE IS CONSIDERING THIS, I HAVE WRITTEN ON THIS ON CNBC.COM AND ONE OF THE ISSUES HE IS RAISING IS WHAT HE WAS TALKING ABOUT WAS THE FACT THAT AS A CONSERVATIVE AND IN A LIBERAL WORKPLACE I HAVE THE RIGHT TO WORK WITH MY COWORKERS TO IMPROVE WORKING CONDITIONS. THAT IS PROTECTED UNDER THE FEDERAL LABOR LAWS AND RELATIONS ACT IN GOOGLE COULDN'T FIRE ME FOR EXERCISING THAT RIGHT, WHICH HE DOES HAVE. WHAT GOOGLE'S RESPONSE TO THAT IS, IS THEY WERE NOT FIRING HIM FOR THAT REASON, THEY WERE FIRING HIM FOR UNPROTECTED ASPECTS. IN THAT MEMO. THEY HAVE CONCEDED THEIR ASPECTS, GOOGLE SAID THAT IS NOT WHAT MOTIVATED THEM IN THEIR MOTIVE MATTERS. THEIR INTENTION IS, THEY ACTED AS THEY DID TOWARDS THE ENGINEER NOT TO SILENCE A D CENTER BUT EXPEL A HARASSER.THAT BRINGS ME TO MY QUESTION, SOME EMPLOYEES AT GOOGLE ARE SAYING THIS MEMO CONSTITUTES A HARMFUL WORKPLACE ENVIRONMENT FOR THEM. GOOD THEY SUE?I'M NOT SURE THEY COULD FOR A COUPLE REASONS, ONE THEY ACTED QUICKLY, SECOND IT'S HARD TO SEE HOW THIS RISES TO THE LEVEL OF A PERVASIVE CONDUCT TO ALTER THE ENVIRONMENT WHICH IS WHAT IS REQUIRED FOR A CLAIM OF A LEGALLY ACTIONABLE SEXUAL HARASSMENT. GOOGLE IS AN AT-WILL EMPLOYER WHO WAS AFRAID TO TAKE ACTION AGAINST CONDUCT BY THE ENGINEER, SELLING SHORT OF LEGAL ACTION SEXUAL HARASSMENT. BUT IT WILL BE A HIGHER HURDLE IF THE WOMEN WANT TO SUE FOR CLAIMING THE MEMO ITSELF WHICH WAS A RUNOFF INCIDENT CONSTITUTED THE TYPE OF PERVASIVE CONDUCT WHICH CAN BE A RUNOFF INCIDENT DEPENDING ON THE NATURE. THAT WOULD CONSTITUTE LEGALLY ACTIONABLE SEXUAL HARASSMENT PARTICULARLY AGAINST THE COMPANY. BUT UNDER CALIFORNIA LAW YOU CAN SUE THE INDIVIDUAL HARASSER. IT IS CONCEIVABLE THE WOMEN COULD SUE THE ENGINEER HIMSELF.YOU HAVE TO REMEMBER THIS MEMO DOES NOT EXIST IN A VACUUM. 80% OF TECH JOBS IN GOOGLE ARE HELD BY MEN, 75% HELD BY MEN, GOOGLE HAS BEEN ACCUSED OF SYSTEMATIC DISCRIMINATION AGAINST WOMEN BY A DEPARTMENT OF LABOR OFFICIAL AND NOW THIS MEMO. MY QUESTION IS, HOW COULD GOOGLE NOT FIRE THE SKY?THAT QUESTION HAS BEEN RAISED, IT IS A TOUGH ONE, THEY WERE BETWEEN THE PROVERBIAL ROCK AND HARD PLACE. THERE WERE OTHER ACTIONS THAT THE COMPANY COULD HAVE TAKEN, BUT, GOOGLE CHOSE TO TERMINATE THIS AT WILL EMPLOYEE AND THE ENGINEER WILL HAVE A TOUGH HURDLE TRYING TO SHOW THAT GOOGLE WAS MOTIVATED BY THEIR PROTECTED ASPECTS OF THIS MEMO AND NOT THE UNPROTECTED ASPECTS WHICH IS WHAT THE CEO CITED IN ANNOUNCING THE TERMINATION.IF YOU ARE ADVISING GOOGLE EXECUTIVES, HOW WOULD YOU TELL HIM HOW TO HANDLE THIS MATTER? WHAT WOULD YOU TELL HIM?WELL, MAKE SURE YOU ARE CLEAR AND CONSISTENT ABOUT THE REASONS FOR TERMINATING. THE CEO IN HIS MEMO TO ALL EMPLOYEES ISSUED YESTERDAY, SAID HE ACKNOWLEDGED THE RIGHT OF THE SOFTWARE ENGINEER AND OTHERS TO EXPRESS DISSENTING VIEWS. WHICH IS A RIGHT THEY HAVE. YOU CANNOT BE TERMINATED FOR DEVIATING FROM THE COMPANY'S POLITICAL ORTHODOX BUT HE SAID THAT IS NOT WHAT THIS WAS. IT WAS A VIOLATION OF THE CODE OF CONDUCT. THE KEY THING IS FOR THE DECISION-MAKERS, WHO MADE THE DECISION TO FIRE HIM. OTHER EMPLOYEES DO NOT MATTER, BUT TO BE CONSISTENT, THEY WERE MOTIVATED BY THE UNPROTECTED ASPECTS OF THE MEMO AND NOT THE PROTECTED ASPECTS OF THE MEMO. WHERE THAT ENDS UP WORKING OUT IN A LEGAL ACTION, WHO KNOWS.I HAVE BEEN SPEAKING WITH DAN EATON, THANK YOU SO MUCH.

A memo written by a male engineer at Google about gender differences sparked a quick rebuttal from Google after it circulated widely online.

Google CEO Sundar Pichai denounced the memo in an email on Monday for "advancing harmful gender stereotypes" and said he was cutting short a vacation to hold a town hall with staff on Thursday. The engineer, James Damore, was fired, according to Bloomberg , which cited an email from him. An email sent to an address believed to be used by Damore was not immediately returned; Google declined to comment.

The engineer's widely shared memo, titled "Google's Ideological Echo Chamber," criticized Google for pushing mentoring and diversity programs and for "alienating conservatives."

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RELATED: Google CEO Cuts Vacation Short To Deal With Crisis Over Diversity Memo

Google's just-hired head of diversity, Danielle Brown, responded earlier with her own memo, saying that Google is "unequivocal in our belief that diversity and inclusion are critical to our success." She said change is hard and "often uncomfortable."

The battling messages come as Silicon Valley grapples with accusations of sexism and discrimination. Google is also in the midst of a Department of Labor investigation into whether it pays women less than men, while Uber's CEO recently lost his job amid accusations of widespread sexual harassment and discrimination.

Leading tech companies, including Google, Facebook and Uber, have said they are trying to improve hiring and working conditions for women. But diversity numbers are barely changing .

The Google employee memo, which gained attention online over the weekend, begins by saying that only honest discussion will address a lack of equity. But it also asserts that women "prefer jobs in social and artistic areas" while more men "may like coding because it requires systemizing."

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The memo, which was shared on the tech blog Gizmodo, attributes biological differences between men and women to the reason why "we don't have 50% representation of women in tech and leadership."

While the engineer's views were broadly and publicly criticized online, they echo the 2005 statements by then-Harvard President Lawrence Summers, who said the reason there are fewer female scientists at top universities is in part due to "innate" gender differences.

Brande Stellings, senior vice president of advisory services for Catalyst, a nonprofit advocacy group for women in the workplace, said the engineer's viewpoints show "how ingrained, entrenched and harmful gender-based stereotypes truly are."

"It's much easier for some to point to 'innate biological differences' than to confront the unconscious biases and obstacles that get in the way of a level playing field," Stellings wrote in an email.

Google, like other tech companies, has far fewer women than men in technology and leadership positions. Fifty-six percent of its workers are white and 35 percent are Asian, while Hispanic and Black employees make up 4 percent and 2 percent of its workforce, respectively, according to the company's latest diversity report .

Tech companies say they are trying, by reaching out to and interviewing a broader range of job candidates, by offering coding classes, internships and mentorship programs and by holding mandatory "unconscious bias" training sessions for existing employees.

But, as the employee memo shows, not everyone at Google is happy with this.