Colin Kaepernick and James Damore deserve credit

Two different West Coast employees — both high-achievers at elite and prominent corporations — are being punished for bringing political discussion into their respective workplaces.

Both are examples of the high cost that sometimes comes with following one’s conscience instead of the crowd — and a reminder that constitutional guarantees of free speech apply to the public square, but not to private companies.

NFL quarterback Colin Kaepernick, formerly of the San Francisco 49ers, pointedly kneeled during the pre-game playing of the national anthem last season as a statement of concern about police brutality. He is now a free agent who, less than a month before opening day, has not been hired by any team.

That’s extraordinary.

“Kaepernick is not just a competent quarterback, but is also better than he was when he led the 49ers to the Super Bowl in 2013,” wrote a sports stats-cruncher at FiveThirtyEight. “It’s obvious Kaepernick is being frozen out for his political opinions, but it’s less apparent how extraordinary it is that a player like him can’t find a team.”

About 10 miles from Kaepernick’s old home base at Levi’s Stadium, the headquarters of Google has been roiled by the firing of James Damore, an engineer who authored a manifesto attacking the company’s efforts to build a more diverse workforce.

“Philosophically, I don’t think we should do arbitrary social engineering of tech just to make it appealing to equal portions of both men and women,” Damore wrote, arguing that “Differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership. Discrimination to reach equal representation is unfair, divisive, and bad for business.”

That was enough to get Damore fired. As Google CEO Sundar Pichai explained in a note circulated to employees: “portions of the [Damore] memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace…To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK.”

Damore may sue Google, although he’s likely to lose on free-speech grounds.

“US labor law is well settled in this area: In the vast majority of US states, employees have almost no rights to free speech at work,” writes Jim Edwards of Business Insider. “The First Amendment to the US Constitution prevents the government from restricting your speech. It doesn’t restrict your employer from controlling your speech when you are at work.”

That’s exactly right. Damore and Kaepernick have a constitutionally protected right to speak their minds in public. But Google’s internal message boards and NFL broadcasts are not a public venue like, for instance, the courthouse steps or the local park.

One important difference is that private companies have a lot of leeway to manage the conflicting values of different employees. Some workers at a company may value diversity, while others might disdain it.

It’s the job of executives at companies like Google and the NFL to balance beliefs of thousands of workers.

“Part of building an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions,” wrote Google’s new vice president for diversity, Danielle Brown, in a note to employees. “But that discourse needs to work alongside the principles of equal employment found in our Code of Conduct, policies, and anti-discrimination laws.”

NFL Commissioner Roger Goodell said something similar about Kaepernick’s one-man protests.

“Players have a platform, and it’s his right to do that. We encourage them to be respectful and it’s important for them to do that,” he said. “But we have to choose respectful ways of doing that so that we can achieve the outcomes we ultimately want and do it with the values and ideals that make our country great.”

The take-home message — for celebrities, athletes, or software engineers — is that even powerful, high-profile companies are making tough choices about how to respect different political beliefs while battling for the financial bottom line.

Whether or not you agree with Kaepernick or Damore, both deserve credit for putting their careers on the line to express their beliefs. Let’s hope both carry the courage of their convictions into public forums — places where they can continue raising issues without fear of corporate retaliation.

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