August 17, 2017 by Anders Ingemarson
Google currently finds itself between a rock and a hard place. The current employment law anti-business climate in general, and the company’s run-in with the Department of Labor the past few years over equal-pay practices in particular, provide context for the firing of Google Memo author James Damore. Such employment terminations are taking place on a regular basis around the country in less high-profile companies than Google as explained by Cato’s Walter Olson:
“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 one.”
“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.”
Regardless of what we may think of Mr. Damore’s memo, of Google’s reaction, and of the wider implications of the societal response for both Google and the country (excellent analysis by Robert Tracinski here and here)—one fundamental question remains: what business is it of the government to directly or indirectly influence the employment practices of a private company such as Google?
The short answer is “none”; any level of government involvement is a violation of the individual rights of both the employee and the employer to enter a contractual relationship on whatever terms the agree upon.
We may disagree with the practices of certain employers—hiring only men under the age of 40, or only women over the age of 50, or paying women twice as much as men for the same job, or the other way around, etc. We may try to convince them to change their mind, and if we can generate sufficient public pressure we may be successful. But we have no right to ask the government to influence hiring and firing policies by the threat of force in the form of labor laws and regulations, enabling both government entities and disgruntled individuals to take or threaten legal action.
So how did we get here? Our legal and regulatory landscape is littered with individual rights violating employment impacting laws and regulations enforced by a plethora of departments, regulatory agencies and commissions (Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA), state fair employment practices agencies (FEPAs), etc.)
But our pick for the piece of legislation/regulation that has had the most individual rights violating impact on the employer/employee relationship is Title VII of the Civil Rights Act of 1964 enforced by the EEOC. Title VII prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. Title VII may have been justified had it been limited to government entities—federal, state and local—which are (or should be) indirectly answering to we the people. But unfortunately, Title VII also applies to private entities which answer to its owners—owners who have individual rights to run their business as they see fit, including having hiring and firing practices that may be considered discriminatory by some. Since its inception, the EEOC has gradually stepped up its enforcement of Title VII, bringing us to today’s inflamed employment climate illustrated by the recent Google incident.
Is Google defenseless? Of course not. With a war chest in the hundreds of billion dollar range, Google could put up a magnificent fight if it had the moral conviction to defend its rights against government intrusion. Here at SEPARATE! we would love to see the company launch a Google X “Repeal The Civil Rights Act Title VII” moonshot.
Google X is the semi-secret research arm of Google’s parent Alphabet. It is involved in cutting edge technologies such as self-driving cars, a network of balloons to provide internet service in remote areas, drone delivery, augmented reality head-mounted displays, and other cool projects that make scientists and engineers drool. Consequently, it has attracted some of the brightest science and engineering minds in the world. Google X calls its projects “Moonshots” to illustrate their visionary, beyond the imaginable, and sometimes outlandish scope.
A “Repeal The Civil Rights Act Title VII” moonshot would certainly be visionary, and for many beyond the imaginable and even outlandish. In other words, a perfect fit. And just as in the engineering realm, Google would be able to attract the most brilliant pro-individual rights, pro-free market minds to build its case against the government and promote its vision of a workplace free of government force to the American people. The pool of talent is deep at America’s think tanks, legal outfits, and marketing firms—The Cato Institute, The Ayn Rand Institute, The Institute for Justice, and others. And they would certainly drool over this opportunity.
It is time that American business gets serious about removing the shackles of government force from the employee/employer relationship. A Google “Repeal The Civil Rights Act Title VII” moonshot could be just what is needed for a successful launch.