Google Makes Employees Sign Away Right to Sue Over Pornography (and Lots of Other Rights, Too)

How badly do you have to want a job at Google to work there? Pretty badly, it would seem. The company insistence that you sign away a whole raft of rights before being hired or even temping there. Among the rights you lose is the right to sue for discrimination or a hostile work environment if you are subjected to pornography or offensive “adult content” in the workplace.

Google would rather you didn’t know about this because the company doesn’t want you to know anything at all about what it’s like to work at Google other than information the company itself has released. That, ironically, is the subject of a lawsuit that made the I-won’t-sue-for-pornography waiver public as part of a court filing. Here it is:

During my employment or assignment at Google, I may be exposed to sensitive “adult content,” such as text, descriptions, graphics, pictures, and/or other files commonly referred to as being “adult” content.

I acknowledge that exposure to this material may be part of my essential job function and hereby release Google Inc. and its subsidiaries and affiliates from any and all liability associated with having this material present in the work environment, including but not limited to claims of harassment, hostile work environment and discrimination.

There are a lot of problems for Google with this waiver beginning with this: It’s probably not legally binding. Chris Baker, attorney for the anonymous Googlers suing the company argues in his filing that “The secret agreement unlawfully requires the release of unwaivable statutory rights to a harassment and discrimination-free workplace under FEHA [the California Fair Employment Housing Act] and Title VII [of the Civil Rights Act of 1964].” And, he writes, California law specifically forbids contracts whose object is to exempt either party from responsibility for harming the other, or for violations of the law.

In other words, it seems possible or even likely that the waiver would not legally bar any Google employee from suing the company over “adult content” in the workplace. On the other hand, it might make employees think that they’ve given up the right to sue.

When asked for comment, a Google spokesperson emailed the following statement:

We have employees who may be exposed to offensive material as part of their jobs, such as those who protect our users by fighting web spam or reviewing flagged videos. Like other companies, we have policies and practices–updated regularly–surrounding such roles. Of course, these policies have never had anything to do with inappropriate content that employees may be exposed to outside their job responsibilities, and have never altered or detracted in any way from Google’s policies prohibiting harassment. We believe any claim challenging Google’s policies on this point will fail.

How many employees have to see adult content?

Beyond its questionable legality, the waiver is way too broadly distributed, according to the filing and also legal experts contacted by The Information, which first broke the story. It’s clear that some Google employees must look at pornographic or offensive content as part of the effort to remove it from Google. But why not limit the waiver to those employees?

Justin Ng, co-founder of Sneaky Crab whose LinkedIn profile says he interned at Google in 2004, commented on the Information’s website that because of the company’s open floor plan, it could be hard for employees to avoid seeing the “adult content” on colleague’s screens as they walked by, at least back then. That doesn’t explain, though, why someone dishing out mashed potatoes in the company’s legendary cafeterias would need to sign a waiver like this one. And, of course, if Google made everyone who worked there sign the same confidentiality agreements in 2004 that it apparently does today, Ng’s comment is itself a violation of those agreements.

That last problem goes to the meat of the lawsuit. According to the suit, Google’s overzealous protection of its privacy goes so far as to forbid all 65,000 people who work at Google from talking to anyone about their salaries, from sharing information with government regulators and the press, and even from writing a novel about someone working at a Silicon Valley company without first getting approval from Google and then submitting the entire draft to the company’s legal team before publication.

Some of these requirements are illegal, Baker argues in his filings. For instance, you cannot forbid an employee from whistle-blowing, as the suit claims Google routinely does. Not only that, when asking employees to sign any agreement that governs trade secrets, California employers are explicitly required to give employees written notice that they cannot be held civilly or criminally liable for sharing company information in confidence with government officials or attorneys. According to the suit, Google is giving no such notice. Once again the apparent purpose is to convince Googlers that they’ve given up more of their legal rights than is actually true.

It all sounds like Google taking advantage of its status as a desirable employer and as a 900-pound gorilla to compel employees to sign away any and all rights it would prefer they didn’t have. And, like many instances of corporate overreach, the tactic appears to be backfiring on them, as court filings make public some of the information Google wishes to keep secret.

(Disclosure: I am a board member and past president of the American Society of Journalists and Authors which contributed amicus briefs to Authors Guild v. Google, a lawsuit over the company’s book-scanning program, which the Authors Guild lost.)

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