A Legal Analysis as to Whether Google Should Have Terminated Kamau Bobb's Employment
June 7, 2021
By: Stephen B. Stern
During the past week, news broke that Kamau Bobb, the (now former) Global Lead for Diversity Strategy and Research at Google, had previously written a blog post in 2007 (before he commenced employment at Google) that included anti-Semitic content. While many people called for Google to terminate Mr. Bobb’s employment, Google made the decision to continue employing him and reassigned him to other responsibilities. Was this the right decision? There are many perspectives from which this decision can be evaluated. The purpose of this post is to try to evaluate Google’s decision from a legal perspective.
Mr. Bobb wrote an entire blog post titled, “If I Were a Jew.” In that post, he accused Jewish people of having an “insatiable appetite for war and killing” and an “insensitivity to the suffering [of] others.” He also concluded that Palestinian hostility toward Israel “cannot simply be baseless,” and made several other aspersions toward Jews and Israel. After the blog post was discovered and brought to the attention of Google employees, Mr. Bobb apologized to Google’s Jewish employees by stating, among other things, that his post “crudely characterized the entire Jewish community” and included “anti-Semitic tropes and prejudice.”
Generally, a company may terminate an at-will employee’s employment for any reason that does not violate applicable law; it does not need an employee to perform poorly or engage in misconduct. When an employee engages in misconduct, such as unlawful harassment or other forms of discrimination that violate applicable law, an employer certainly has good grounds to terminate the employment relationship. In fact, acts of unlawful harassment or other forms of unlawful discrimination may even give rise to termination for “cause” if that is the applicable standard under a collective bargaining agreement or individual employment contract.
But does an employer need to terminate an employee’s employment each time it determines an employee engaged in unlawful harassment or other forms of discrimination? Generally, the answer is “no,” but the company needs to appreciate there are potential risks when it chooses not to terminate the employee’s employment, depending on the facts and circumstances of the particular case. In addition, there may be risks associated with terminating the employee’s employment if the employee can claim the conduct at issue constitutes protected activity. For example, an employee condemning homosexuality may claim that expressing such views reflects the employee’s sincerely held religious beliefs (that does not necessarily mean, however, the employee would prevail in bringing a claim for religious discrimination) or, in some jurisdictions, political affiliation is a protected characteristic and an employee may claim his/her conduct is a reflection of his/her political views that are protected under applicable law.
When helping companies navigate how to respond to an employee who engaged in unlawful harassment or other forms of discrimination, I often ask the question, “Do you think this employee is redeemable?” In other words, how significant is the risk that the misconduct will occur again? The answer to that question generally requires consideration of many factors, such as the severity of the misconduct, the frequency of the misconduct, the number of employees directly affected by the misconduct, whether the employee who engaged in the misconduct seems genuinely remorseful, and whether the company believes the employee who engaged in the misconduct can learn from the experience to avoid making the same mistake in the future. When the discriminatory conduct occurred a long time ago, as was the case with Mr. Bobb, it is reasonable to consider how long ago the misconduct occurred, the person’s age at the time the act(s) occurred, and whether there is a subsequent course of action that would suggest the prior acts are a thing of the past and will not be repeated (or whether they may still be part of the employee’s present thinking).
In the case of Mr. Bobb, his blog post required extensive thought and careful consideration of the content, and that content was extreme in nature, as it slandered the entire world Jewish population as well as the country of Israel. Mr. Bobb even admitted that he “crudely characterized the entire Jewish community” and used “anti-Semitic tropes and prejudice[,]” which necessarily eliminated any potential claim of protected activity. It is possible that Mr. Bobb has learned more about Jewish people and the nation of Israel since he wrote that now infamous post, but to abandon such extreme views would require a significant change in thinking. To date, there has been no (public) discussion of his course of conduct since writing the post. Thus, other than his apology, it is difficult to evaluate, at least from a distance, whether there is any evidence that Mr. Bobb has reformed his thinking.
Besides the severity of the conduct at issue, Mr. Bobb’s case should include consideration of his (now former) job responsibilities. Mr. Bobb was the Global Lead for Diversity Strategy and Research. The fact that anyone working in Human Resources, let alone the head of the company’s Diversity Strategy and Research, holds (or at least held) such extreme views about any class of employees seems to undermine his (and, thus, Google’s) credibility as a qualified ambassador and policy leader on diversity. Of course, Google can respond to that argument, at least in part, by pointing to the fact that it has removed Mr. Bobb’s job responsibilities related to diversity.
Also related to Mr. Bobb’s (now former) job responsibilities is the risk that Google faces exposure to liability for actions taken by Mr. Bobb. It is possible (and quite likely) during his tenure as Global Lead for Diversity Strategy and Research Mr. Bobb may have evaluated Jewish employees or made determinations regarding promotions, pay raises, bonuses, and other terms and conditions of employment. If any Jewish employee believes he/she did not receive fair treatment by Mr. Bobb and suffered an adverse employment action as a result, he/she may have a viable claim against Google. And, in defense of that claim, Mr. Bobb will have to explain his post and beliefs about Jewish people under oath in a deposition. This risk is not limited only to those employees who reported directly to Mr. Bobb. As the Global Lead for Diversity Strategy and Research, Mr. Bobb had substantial influence over how Google implemented its diversity strategy (e.g., culture setting) and it is possible that discriminatory treatment may have trickled down to employees who did not directly interact with Mr. Bobb. Furthermore, in reassigning Mr. Bobb, it is not clear how Google will avoid potential liability going forward if Mr. Bobb has any influence over the terms and conditions of employment for any Jewish employees and any of those employees suffer adverse employment actions directly or indirectly at the direction of Mr. Bobb. Perhaps Google has implemented some other corrective actions involving Mr. Bobb, such as monitoring of his supervision of other employees and/or sensitivity training.
Another consideration in Mr. Bobb’s case is the potential precedent it sets. If severe conduct like Mr. Bobb’s leads to reassignment and does not lead to the termination of employment, one may wonder what type of misconduct would lead to the termination of employment. Has Google set a “precedent” of simply “condemning” such discriminatory acts, but allowing employees who hold discriminatory views to stay in its workplace? If employees who espouse such extreme views, whether about Jewish people or other employees in protected classifications (e.g., race, sex, sexual orientation, disability), are permitted to populate Google’s workforce, does Google risk allowing a hostile environment to take root and grow? Alternatively, if future acts of discrimination directed at employees in other protected classes leads to the termination of employment of the employee(s) who engage in such discriminatory misconduct, will Google send a message to its Jewish employees that they are less protected than other employees?
There seldom is a clear right or wrong answer in a situation like this one. To be clear, I do not represent Google and do not know any of the “behind the scenes” details that went into Google’s evaluation of this situation. Ultimately, these are evaluations and risks that need to be evaluated on a case-by-case basis by each company.