Because Google and Silicon Valley are cutting-edge workplaces, there’s a tendency to assume that the premise of the Google memo furor - “Your erroneous opinions are making my work environment hostile” — is somehow new as well.
But it isn’t the least bit new. The application of hostile work environment law to workplace speech — including basically political or ideological discussions, not just vulgar jokes or unwanted personal talk — goes back decades.
Hostile-environment law is not content-neutral. It plays favorites on topics and it takes sides in debates. What the government cannot do directly, it requires employers to do in its stead: police “discriminatory” speech.
Many outsiders look at a firing-over-speech and say it’s just a private firm’s decision. No public policy or First Amendment implications, right? Not quite…
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.
Those who write laws can blame private actors’ decisions. The private actors in turn can feel as if their hands were tied given the legal reality they might face.