Labor / Employment, On The Job

White Conservative Dudes Sue Google For Gender And Race Discrimination

Can conservative white guys really sue for discrimination and harassment? Yup!

By  
on

According to Google’s most recent diversity profile, its workforce is 69% male and 56% white, and its leadership is 75% male and 68% white. The company is currently dealing with a Department of Labor investigation and lawsuit claiming it discriminates against women in terms of pay and promotions. With that backdrop, one might conclude that white dudes are having a pretty good run at Google.

Not so, however, say plaintiffs James Damore and David Gudeman, who filed a class-action lawsuit against Google on January 8, 2018. They claim that despite the reported statistics, white guys (particularly conservative white guys) at the tech giant are actually having a rough time of things.

They claim that they and other similarly situated Google employees are and have been systematically discriminated against, harassed, and retaliated against because they are white males and because they spoke out about their conservative political views.

One of the named co-plaintiffs, David Gudeman, recently said in a blog post:

First, I don’t hate Google, and I certainly don’t hate the people who work there. The large bulk of Googlers are wonderful people—smart, kind, and wanting to do the right thing. I wouldn’t want this suit to give people a bad opinion of Googlers, but, honestly, they brought this on themselves for tolerating the hatred, racism and misandry of a small but vocal and organized subgroup who want to use Google as a vehicle of social change rather than as a vehicle of delivering excellent service and products to their customers.

Let’s look at the claims in the lawsuit.

The Specific Allegations and Claims

Sponsored

The plaintiffs allege that Google has created in the workplace “an ideological echo chamber, a protected, distorted bubble of groupthink.” They contend that this echo chamber is called, within Google, the “Googley way.” The plaintiffs claim that Google employees who express views deviating from the “Googley way” on political subjects (such as “diversity” hiring policies, “bias sensitivity,” and/or “social justice”) were and are singled out, mistreated, and systematically punished and terminated from Google.

The plaintiffs claim that based on their “heterodox political views, and for the added sin of their birth circumstances of being Caucasians and/or males,” they “were ostracized, belittled, and punished.” They say “[t]his is the essence of discrimination—Google formed opinions about and then treated Plaintiffs not based on their individual merits, but rather on their membership in groups with assumed characteristics.”

They thus claim that Google had and has “open hostility for conservative thought [that] is paired with invidious discrimination on the basis of race and gender, barred by law . . . [and that] Google’s management goes to extreme—and illegal—lengths to encourage hiring managers to take protected categories such as race and/or gender into consideration as determinative hiring factors, to the detriment of Caucasian and male employees and potential employees at Google.”

They further claim that Google uses illegal hiring quotas to fill positions with minority and female candidates, and that the company “openly shames managers of business units who fail to meet their quotas.”

In support of their allegations, the complaint (which is 161 pages long including exhibits) contains dozens of pages of screenshots from internal Google discussions. Many of the screenshots include the full names and profile pictures of Google employees authoring the comments and discussions.

Sponsored

The plaintiffs’ class-action complaint contains nine separate substantive causes of action and one claim for declaratory relief. All of the claims are based on violations of California law. No federal law violations are alleged.

The first, second, and seventh claims are brought under the California Labor Code (sections 1101, 1102, and 1102.5, respectively). Those three claims concern the alleged discrimination, harassment, and retaliation against the plaintiffs for their political views and speech.

Counts three through five and count eight are made under California’s Fair Employment and Housing law. These claims are based on the purported race and gender discrimination, harassment, and retaliation against the plaintiffs. The sixth claim is for retaliation in violation of public policy, and the ninth claim asserts unfair business practices in violation of California’s Business and Professional Code.

Can Conservative White Guys Really Sue for Discrimination and Harassment?

Yes. Anti-discrimination employment laws in the U.S. at both the state and federal levels protect employees from discrimination based on their gender or race in the terms and conditions of their employment. The laws do not contain exceptions for white males. The case law is clear that if an employment decision is made because of someone’s race or gender, it’s unlawful regardless of the individual’s particular race or gender.

While there’s no federal law prohibiting discrimination or retaliation for political views in the private workplace, California’s Labor Code does contain such a prohibition. The Labor Code doesn’t have an exception excluding conservative views from protection. (Remember: The First Amendment only applies to government action and so it doesn’t apply to the employment relationship in the private sector. But it does provide protections to government employees.)

What Are the Takeaways From This Lawsuit?

I think this case illustrates a couple of important things. First, I think juxtaposing this lawsuit with the other lawsuit against Google claiming discrimination against women illustrates the delicate balance that companies, managers, and human resources departments must strike in this era. The publicity and data surrounding pay disparities for women and minorities are pushing companies to try and remedy those issues.

But such efforts concomitantly may create the opportunity and incentive for individuals to go too far and make adverse employment decisions specifically because someone is not a minority or female or because someone doesn’t adhere to certain political beliefs.

And this dovetails nicely into the second point I think this lawsuit highlights, which is the importance of training for managers and employees on the basics of labor and employment laws. In my experience as a management-side employment lawyer, many individuals who make important employment decisions don’t fully understand how employment laws work or what’s actually prohibited.

Despite misunderstanding the law, however, the cases and people I’ve dealt with have shown me that the people making employment decisions are usually well-meaning people who are genuinely trying to do the right thing. I’ve seen firsthand that a little training and education can truly make a huge difference.

At the end of the day, I’m not going to look into the crystal ball and try to predict the outcomes or merits of either case against Google. But I will predict that how these cases play out will give us a lot of insight about the present and future of the modern workplace from both legal and sociological perspectives.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

Topics

, , , , , , ,