Posted June 8th, 2019.
Santa Clara County Superior Court Judge Brian Walsh rejected tech giant Google’s efforts to have a lawsuit originally brought by ex-Google engineer James Damore dismissed, the Mercury News reported on Friday, meaning that the case can now proceed into the discovery phase.
Google fired Damore in August 2017 after he authored a lengthy anti-diversity document alleging, among other things, that inherent psychological differences between men and women rather than sexism explains gender gaps in tech and leadership roles (an argument full of scientific holes). He also claimed Google was dominated by “left biases,” is “alienating conservatives,” and engaged in “discriminatory practices” to increase diversity in the workplace. That document was published by Gizmodo after it went viral internally at Google; after his firing, Damore became a sort of cause célèbre among conservatives ranging from the mainstream to extreme, far-right activists.
Damore, along with fellow ex-Googler David Gudeman, filed a class action lawsuit against Google in January 2018 alleging that the company illegally discriminated against them on the basis of their conservative politics, being male, and being of the “Caucasian race.” Per the Hollywood Reporter, they later amended the lawsuit to “add as plaintiffs two men who were rejected for jobs at Google, Stephen McPherson and Michael Burns, and another employee who ultimately voluntarily dismissed his claims.” The suit also alleges discrimination against Asian applicants.
The National Labor Relations Board ruled in early 2018 that Damore’s comments criticizing Google were protected by law, but that his comments on diversity were not, ultimately concluding the company was within its rights to fire him. In November 2018, Damore and Gudeman agreed to settle their claims through arbitration, which the Reporter noted now leaves only McPherson and Burns pursuing Google in court.
Per the Reporter, Google has requested the political bias claims in the class action be tossed out, saying the suit did not adequately explain who could be considered part of the class or how they would identified. Walsh rejected the request, the Reporter wrote, though seemingly skeptical that the plaintiffs would sort the mess out:
In a tentative ruling, Santa Clara County Superior Court judge Brian Walsh acknowledges that the court “has doubts regarding the viability of the putative Political Subclass,” but isn’t prepared to find the requirements for class certification can’t be satisfied.
“Ultimately, it will be plaintiffs’ burden to show that certification of the Political Subclass is appropriate,” writes Walsh. “The Court anticipates that this will not be an easy burden to satisfy; however, the pleadings do not establish that there is no reasonable possibility it can be met.”
Walsh also denied Google’s motion for judgment on the pleadings as to the claims of discrimination against Asians “on procedural and substantive grounds,” meaning that element may be included in the case moving forward.
As the Mercury News noted, Walsh’s rulings clear the way for the case to move into the discovery phase, when the plaintiffs and Google will be able to request internal documents from the other side to try and prove or disprove the merits of the allegations.
Legal experts have (for the most part) largely been dismissive of the lawsuit’s chances.
“I think [Damore’s] odds are terrible,” AJ Bhowmik, managing partner at San Diego’s Blumenthal Nordrehaug & Bhowmik law firm, told MarketWatch soon after the filing. “The judge will absolutely consider the facts. We’re moving in an upside down world where an individual can claim discrimination for being a white male” when Google is disproportionately staffed with both whites and males.
“It’s a fundamental misunderstanding of the nature of free speech,” Sanford Heisler Sharp LLP chairman David Sanford told Forbes in 2017. “…[Employees] don’t have the right to do is say any stupid thing that pops into their head. For conservatives to say they’re ‘shocked, shocked,’ they should look at the constitution and some case law.” Cole Schotz litigation department special counsel Neoma Ayala told Forbes that in Damore’s memo, “If you replaced ‘woman’ with ‘black person,’ we wouldn’t even be having this conversation.”