Retaliation Lawsuit Against Google by Ex-Employee Who Engaged in Anti-Israel Protests Can Go Forward in Part, Dismissed in Part
Some excerpts from Judge Jesse Furman (S.D.N.Y.) Wednesday in Skaf v. Google LLC:
Skaf, an Arab woman, was employed by Google from January 12, 2009, to April 17, 2024….
On October 7, 2023, Hamas and its affiliates in the Gaza Strip launched a terrorist attack on Israel, prompting Israel to attack Hamas in turn. In the wake of these events, Skaf was an outspoken critic of Google's involvement with Israel and, the Complaint alleges, was "increasingly subjected to anti-Arab bias." But Skaf's criticisms of Google for its involvement with Israel long predated the events on and after October 7, 2023.
In May 2021, Google won the bid for Israel's "Project Nimbus, a contract to provide cloud computing infrastructure, artificial intelligence and other technology services to the Israeli government and its military, including and [sic] Israeli military efforts in the occupied territories." At or around the time, Skaf "raised concerns" about whether Project Nimbus adhered to Google's "AI Principles"—which provided, among other things, that Google would not design or deploy artificial intelligence technologies "whose principal purpose or implementation is to cause or directly facilitate injury to people" or "whose purpose contravenes widely accepted principles of international law and human rights." "[I]n response, Google informally flagged" Skaf, but it did not "officially reprimand[ ]" her. In October 2021, Skaf signed a "drop Nimbus petition."
On October 12, 2023, five days after the Hamas attack, Google's Internal Community Management Team ("ICMT")—an entity responsible for moderating content in accordance with Google's Community Guidelines—advised that employees "should avoid discussing the events unfolding in Israel/Palestine" and limit any posts on the subject to "support of their colleagues." On December 4, 2023, Skaf brought a message on an internal messaging platform stating that "Israel will prevail" to the attention of the ICMT. The ICMT emailed Skaf that the post "was not in violation of community guidelines and would not be taken down"—apparently because it had been made before October 12, 2023, and was "grandfathered in."
Shortly thereafter, Skaf asked the ICMT if that meant she could post a meme of a Palestinian flag stating "Palestine will prevail." When she did not receive a response, she posted the meme the very next day. The ICMT promptly removed Skaf's post as "'disruptive' and in violation of" the October 12, 2023 guidance, and temporarily banned her from the internal messaging platform.
Around the same time, Skaf started posting about Project Nimbus and Gaza in another internal Google forum. Through her involvement with these platforms, Skaf allegedly became aware that "many Google employees held anti-Arab animus." One colleague, for instance, asked "why Palestinians bothered to have children." … Skaf [also alleges she] later learned that Google employees were doxxed, stalked, or accused of supporting terrorism because they had spoken out against Project Nimbus or worn a "keffiyeh (Palestinian scarf)" to the office ….
On March 6, 2024, Skaf published a post asking whether Google should cancel Project Nimbus "[t]o avoid complicity in war crimes [and] respect its principles." In response, some colleagues posted memes accusing Skaf "of 'ruining International Women's Day … with her predictably hateful agenda'" or "accusing her of 'supporting terrorists who use sexual violence as a weapon of war.'" Skaf complained to the ICMT, which took down "some but not all of the attacks on her."
On March 8, 2024, Skaf received an email from Google Security notifying her that she had been "doxxed" by having her name, work location, and internal Google profile picture included in a Daily Wire press article. The article included screenshots of Skaf's questions and comments from the internal Google messaging systems about Israel. Shortly thereafter, on March 14, 2026, Skaf filed a complaint with Google's Employee Relations ("ER") about being doxxed and "the racial and/or ethnic harassment, she had suffered since October 7, 2023." Google failed to respond to the complaint or take any corrective action. More significantly, the Complaint alleges that Skaf was the victim of "immediate" retaliation for making her complaint to ER. Specifically, an ongoing discussion of possible transfer—which would have provided Skaf with opportunity for further advancement and promotion—was "abandon[ed]."
In late March 2024, Skaf participated in planning a sit-in protest "demanding the cancellation of Project Nimbus, that Google address the harassment, intimidation, bullying, silencing, and censorship of Palestinian, Arab, Muslim employees and that Google address the mental health crisis among Google employees caused by Project Nimbus." The protest took place on April 16, 2024, in Google's offices in New York, Sunnyvale, and Seattle. In New York, Skaf and others sat on the 10th floor of Google's offices, where they "peacefully distributed leaflets" and "gave speeches" to oppose Project Nimbus and the harassment of Arab, Muslim, and Palestinian employees. Other employees "harassed and filmed" Skaf and her fellow protestors. That conduct violated Google's Code of Conduct, but the employees who engaged in it were not disciplined by Google in any way.
At some point, Google security appeared at the protest. Skaf and the other organizers "constructively engaged with them, quieting the protest, [and] ensuring that they were not blocking the lounge or disturbing others using the space." The next day, Google terminated Skaf's employment, explaining that a review of her conduct on April 16, 2024, determined that she had violated Google's workplace policies. Skaf was one of fifty Google employees terminated after participating in the April 16, 2024 protest….
Skaf sued on many grounds, some of which were largely unrelated to the protest, but I wanted to focus on two. First, the court allowed her claims of retaliation under antidiscrimination statutes to go forward:
[Skaf alleges] that she was unlawfully terminated for engaging in protected activity—namely, for filing the March 2024 ER complaint and for participating in the April 16, 2024 protest….
Google argues that the April 16, 2024 protest—after which Skaf was terminated—did not constitute protected activity for two reasons: because Skaf and her colleagues were protesting a political issue, not discrimination, and because the protest was disruptive. Those arguments are not without force and may ultimately carry the day, but—assuming the truth of the allegations in the Complaint and drawing all inferences in Skaf's favor, as the Court must—they do not warrant dismissal at this stage.
As to Google's first point, the Complaint explicitly alleges that the protest was an effort to oppose not only Project Nimbus, but also the "harassment, intimidation, bullying, silencing, and censorship of Palestinian, Arab, and Muslim Googlers." And while the Complaint does not plausibly allege that Skaf was treated differently on account of her race or ethnicity, as opposed to her political views, it does plausibly allege that she and her fellow protestors "possessed a good faith, reasonable belief that the employer's conduct qualified as an unlawful employment practice" under Title VII and the NYCHRL.
As to Google's second point, the Complaint explicitly alleges that the protestors were "peaceful," took steps to minimize disruptions to others, and complied with Google security's directives. In light of those allegations, the Court cannot say as a matter of law that the protest was too "disruptive or unreasonable" to warrant protection….
Second, the court rejected her claim of whistleblower retaliation:
[Skaf also sues] under NYLL § 740, which prohibits "[a]n employer" from taking "any retaliatory action against an employee … because the employee … discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation." To state a claim under this provision, "a plaintiff must plead: (1) activity protected by the statute; (2) retaliatory action; and (3) some causal connection between the protected activity and the adverse action."
Significantly, to qualify as protected activity, a complaint must be based on a "reasonabl[e]" belief that the employer is violating a law, rule, or regulation. That is, plaintiff must show not only that he believed that the conduct constituted a violation, but also that a reasonable person in his position would have believed that the conduct constituted a violation."
The employee "need not specify the actual law, rule or regulation violated when making a complaint to a supervisor, [but] she must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct." Moreover, the employee must disclose, or threaten to disclose, that a policy or practice actually violates the law; it is not enough, for example, to say that the conduct is "legally dubious."
In light of these standards, Skaf's claim fails for two reasons. First, she fails to plausibly allege that her complaints about Project Nimbus were based on a reasonable belief that Google, her employer, was violating the law. She contends that she was protesting violations of the U.N. Genocide Convention and the Proxmire Act, a U.S. law that prohibits genocide (and incitement to commit genocide). But both define genocide as "a specific intent crime." And the Complaint is devoid of any allegations indicating that Skaf believed—let alone reasonably believed—that Google had the requisite specific intent.
{Google argues that a Section 740 claim cannot be based on a complaint that the employer violated non-domestic law, such as the U.N. Genocide Convention. The Court need not and does not decide that question, as Skaf's claim fails either way.}
Nor is it enough to suggest, as Skaf does, that she accused Google of complicity in, or aiding and abetting, genocide. Aiding and abetting liability also attaches only if the perpetrator possesses "the intent of facilitating the offense's commission." And while the U.N. Genocide Convention (unlike the Proxmire Act) does prohibit complicity in genocide, Google itself is not a party to the Convention. In short, Skaf fails to plausibly allege that she conveyed a reasonable belief that Google was violating the law.
{Whether it is reasonable to believe that Israel (or Hamas, for that matter) has committed genocide is a deeply contested question upon which the Court need not and does not opine here. That is because the dispositive question for purposes of Skaf's Section 740 claim is whether her protest was based on a reasonable belief that Google, her employer, was violating the law.}
Second, and in any event, Skaf fails to allege that she put Google on notice that she believed it was violating the law. To be sure, Skaf repeatedly protested Project Nimbus. But she never communicated a belief that Project Nimbus was actually "illegal." The April 16, 2024 sit-in, for example, merely demanded that Google "Drop Project Nimbus."
And while Skaf posted a question on an internal message board asking whether Google should cancel Project Nimbus "[t]o avoid complicity in war crimes & respect its principles," that does not constitute a disclosure of (or a threat to disclose) a belief that Google was actually violating the law. Skaf posed the question whether Project Nimbus made Google complicit in war crimes. That is closer to a contention that Google's conduct was "legally dubious" than it is to a contention that Google was actually violating the law. See Thacker v. HSBC Bank USA, N.A. (S.D.N.Y. 2023) (dismissing a Section 740 claim based on the fact that the employee had reported conduct that she believed to be "legally dubious"). On top of that, the Complaint contains no allegations indicating that the internal post was directed to a Google supervisor or a public body, as Section 740 requires….