Originally published in Business Insider

By Julie Totten

The debate about James Damore’s Google manifesto and his subsequent firing is going to get a lot more interesting.

Consider what’s likely next for Damore, who filed a formal complaint with the National Labor Relations Board (NLRB) against the search giant shortly after his termination, and how that deliberation could play out.

Under the law, every employee in the country, regardless if they are unionized or not, has the right to engage in certain concerted and protected activity in the workplace without being retaliated against.

In one case, workers who made a YouTube video to voice concerns about their safety digging a foundation at a Superfund site, for instance, were considered protected by the NLRB.

So, the question is, what was Damore doing when he wrote that memo? Was he trying to rally other employees together to take some sort of action related to the terms and conditions of their employment? Or was he just making a personal gripe, which is not protected?

Within the confines of NLRB matters, parallels to this case can be found in recent cases involving employees fired for the content of their Facebook posts; so-called “Facebook firings.”

Under the Obama-era NLRB, those cases were, for the most part, decided in a pro-employee manner, with the Board readily finding employee posts to be protected, by broadly interpreting what it means to be engaged in concerted activity regarding the terms and conditions of employment.

But the composition of the NLRB is changing, with the departure of several Democratic members who are being replaced by Trump appointees.

And that’s where this case may lead to an ironic result.

Because of the specific content of his memo, generally that diversity efforts are not working, Damore has become a hero to many on the political right, who have defended his statements on the basis of free speech. He is speaking out against political correctness in the workplace, they have argued, and as such Google infringed on his First Amendment rights when it fired him for making those opinions public.

One would expect that the Trump-appointed NLRB would take a more conservative view of Damore’s actions than the Obama-era Board, ruling that Damore’s “manifesto” did not constitute concerted protected activity.

But politics might get in the way, leading the current Board to support Damore. If that happens, they would, in fact, be mimicking a position that’s more in line with the Obama administration, although for very different reasons.

Yes, we are living in polarizing times. But the extent to which the polarization is working its way into our legal system in Trump’s America is still unknown. James Damore and Google should provide an early insight.

Julie A. Totten is a partner at law firm Orrick.