Did James Damore have a legal right to publish a manifesto stating that women are biologically unsuited for employment as engineers?
The legal path is muddled.
Generally, a private sector employee has no speech rights in the workplace.
For example, in Dixon v. Coburg Dairy, Inc., a court upheld the firing of a worker who was terminated for failing to remove his lunch box, which displayed the Confederate flag. Dixon argued this was his right to express his “heritage,” and sued under a state law that protects political speech. The court said that political speech is protected in public settings—not in a private employer’s lunch room.
In Cotto v. United Technologies Corp., the employer—a defense contractor— ordered every employee to display a small American flag at his or her work station. Cotto lost his case-- the court said the employer had a right to compel the flying of the flag on its private property.
But Damore has filed a complaint that takes a different path. His case is based on the National Labor Relations Act. Yes, that’s odd—there is no union issue here. But that law protects employee speech very broadly.
Lawyers have made clever uses of the law in nonunion settings, in effect stretching it far beyond the original intent to protect workers who protest in a “labor” context.
Damore's lawsuit-- filed this week-- argues that he was discriminated for view point discrimination—discrimination against a white person, a male, or a conservative.My best guess? At some point, courts look at legislative intent. The National Labor Relations Act was not enacted to protect Damore’s kind of speech. If that were the case, private businesses would be forced to put up with any and all speech that the employer finds disagreeable, disruptive, or offensive.