Seyfarth Synopsis: Google now finds itself in the unfortunate position of being accused of discrimination against women in pay and promotions and – according to a new complaint filed in California Superior Court – against conservative white men. Most troubling, Plaintiffs in that case point to Google's diversity and inclusion efforts, which are meant to combat discrimination in the workplace, as the very basis for their allegations of sex and race discrimination.
In December, Seyfarth's Pay Equity Group reported on a lawsuit brought against Google in the California Superior Court under the California Equal Pay Act, which alleges that Google discriminates against its women employees by systematically paying them lower compensation than their male peers for performing substantially similar work under similar working conditions.
Now, Google is facing another class action lawsuit brought by two former employees, which alleges that Google discriminates against white conservative men. On January 8, former Google engineer James Damore, who famously circulated a memo about Google's so-called "ideological echo chamber," and David Gudeman filed a discrimination class action complaint against Google on behalf of all employees of Google discriminated against "due to their perceived conservative political views," "their male gender," and/or "their Caucasian race." The case is Damore v. Google, LLC, Case No. 18CV321529 (Cal. Sup. Ct., Santa Clara Cty.).
The complaint alleges that employees who deviated from the "majority view" at Google regarding issues such as "'diversity' hiring policies, 'bias sensitivity,' or 'social justice,'" were singled out, mistreated, and systematically punished and terminated from Google. The complaint also alleges that this "open hostility" to conservative thought leads to discrimination in hiring, promotion, and termination decisions on the basis of race and gender because of the "extreme" lengths Google allegedly goes to in taking race and/or gender into consideration as determinative hiring factors, to the detriment of white males.
The complaint specifically singles out several of Google's diversity initiatives, including, among other things, a "Diversity and Inclusion Summit" and a "diversity training class," as evidence of bias against conservative white men. According to the complaint, "Google's current method of increasing diversity resulted in what is known as reverse discrimination, because Caucasian and Asian males were not being selected for jobs and promotions due solely to their status as non-females or non-favored minorities."
Can They Do That?
Maybe. The term "reverse discrimination" has no legal meaning under the anti-discrimination statutes. The protected classes contemplated by these statutes are broadly defined: sex, race, and religion, to name a few. Indeed, every person is a member of a protected class, as everyone has a sex and a race. Discrimination is just discrimination, and it is just as unlawful if targeted against white men as it would be against any other group. As long as an employee is negatively impacted because of his or her membership in a protected class, that counts as discrimination and could form the basis for a lawsuit.
California law also bans private employers from discriminating against workers due to their political views, affiliations, or activities. However, a common misconception is that this protection grants private sector employees in California carte blanche to exercise free speech rights at work, including expressing political views. For instance, participating in a political activity that creates a conflict of interest with an employer's business model could legitimize a termination. Additionally, if an employee cannot complete his or her work due to on-the-clock political activities, the employee may be putting his or her job on the line.
Implications For Employers
Regardless of its viability, this new complaint against Google raises some difficult questions for employers. Many employers have found that well-constructed diversity and inclusion programs can promote worthy goals, including greater acceptance and productivity in the workplace. In addition, some employers have found that a diverse work force translates into diverse thought, which in turn can be leveraged to promote innovation. The Damore complaint, however, points the finger at those very programs as vehicles for discrimination against groups who may feel shunned or shut out by those programs.
The Damore complaint is therefore a good reminder that employers should take heed to ensure that their initiatives emphasize inclusion, not division. Ideally, membership in affinity groups should be extended to all individuals. Likewise, a best practice for initiatives to hire and promote traditionally underrepresented groups is to emphasize selecting the most qualified candidate in terms of experience, education, and other legitimate criteria, regardless of race, gender, or other protected category.
How and to what extent this case proceeds from here could have a significant impact on employers' use of diversity and inclusion programs. We look forward to bringing you, our loyal readers, news of further developments as they happen.
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