During discovery, the plaintiffs will have the ability to request
every document, email, and text concerning politics involving Google’s
decision-makers.
Google’s public relation’s mess is just beginning. In August,
when Google fired software engineer James Damore following the leaking of
Damore’s internal memorandum discussing workforce diversity through a non-PC
lens, the storyline went that, as an at-will employee working for a private
company, Damore lacked legal recourse. At the time, I challenged the
conventional wisdom, arguing Damore had a solid basis to sue
Google—illegal retaliation in violation of Title VII.
Given my niche in, among other things, federal employment law,
my earlier exposition naturally focused on the federal anti-discrimination
statute. In addition to prohibiting sex and race discrimination, those laws
make it unlawful for an employer to fire an employee for opposing illegal
discrimination.
At the time of his firing, Damore’s comments to the press
foretold of a future lawsuit premised on retaliation. Earlier this week,
lawyers for Damore filed suit against Google for retaliation, as well as race
and sex discrimination, and several other claims. But, shrewdly, they did so in
a California state court and brought solely state law claims. Damore’s
attorneys purposefully excluded a Title VII claim or any other federal theory
in the class-action complaint. Here’s why that’s significant.
Google Will Fight This Case in State, Not Federal,
Courts
In the United States, because our Constitution adopts a federal
form of government, there are two separate court systems: the federal court
system and state court systems. (Or, more accurately, 51—one for every state
and the federal system.) Further, because the federal government possesses only
limited and enumerated powers, federal courts may only hear certain types of
cases. Simplistically stated, federal courts may hear cases in which the
plaintiff sues under a federal law (called federal question jurisdiction) or in
which the plaintiff sues a citizen of another state and damages exceed $75,000
(called diversity jurisdiction).
In this case, because Google is headquartered in California and
Damore resides in California, there is no diversity jurisdiction. Because
Damore alleged only state law claims, there is no federal question jurisdiction.
That means Google will be forced to litigate Damore’s complaint in the state
court system.
Why does this matter? The foremost reason: Because Damore’s
employment contract likely includes an arbitration agreement. California courts
have a tendency of ignoring arbitration agreements, much more so than federal
courts. In fact, the sunshine state’s court system is so predisposed against
arbitration clauses that in recent years the U.S. Supreme Court has twice
overruled California Supreme Court precedent invalidating arbitration
agreements: first in 2011 in AT&T Mobility v. Concepcion, and then
three years ago in DIRECTV, Inc. v. Imburgia.
Even after two successive reversals, California courts seem
willing to give short shrift to the U.S. Supreme Court’s view. For instance,
shortly after the Supreme Court decided Imburgia, a California court
framed that decision as addressing only a “narrow issue,” and the state court
refused to enforce an arbitration clause.
Google Has Already Bungled This Situation
One would think that if anyone had attorneys competent enough to
craft an airtight arbitration clause, it would be the tech giant Google. But
one would also think that Google wouldn’t be in its current position if it had
such savvy attorneys—assuming Google listens to their advice, that is. After
all, Google could have avoided the public airing of the most salacious details contained in Damore’s
161-page complaint by offering him a sizable severance package in exchange for
giving up his right to sue and promising not to disparage Google.
Instead, Google faces a 10-count, class-action lawsuit setting
forth, in addition to retaliation, state law claims for race, sex, and
political discrimination, among other legal theories. The allegations Damore
sets forth provide a strong case that Google discriminated against white men.
More significant, though, may be Damore’s political discrimination claim
brought under Section 1102 of the California Labor Code.
That section provides: “No employer shall coerce or influence or
attempt to coerce or influence his employees through or by means of threat of
discharge or loss of employment to adopt or follow or refrain from adopting or
following any particular course or line of political action or political
activity.” Damore’s complaint highlighted several instances of
anti-conservative and anti-Trump bias.
Discovery Will Be a Gold Mine of Uncomfortable
Truths
The examples included in the complaint, however, were merely the
comments about which Damore and his co-plaintiff, David Gudeman, knew. Here’s
where it will get even more interesting.
During discovery, the plaintiffs will have the ability to
request every document, email, and text concerning politics or political issues
involving Google’s decision-makers. In a class-action lawsuit, the number of
decision makers will be in the hundreds, if not thousands, including the
high-level executives involved in Damore’s termination.
Further, evidence that the decision-makers held an
anti-conservative bias, even if not tied to a specific employment decision, is
typically admissible circumstantial evidence of discriminatory intent. What
might that evidence be? Well, consider The Daily Caller’s article this week
that exposed Google’s display of “fact checks for conservative publications in
its results, [but] [n]o prominent liberal sites receive the same treatment.”
As Eric Liberman continued, “not only is Google’s fact-checking
highly partisan — perhaps reflecting the sentiments of its leaders — it is also blatantly wrong,
asserting sites made ‘claims’ they demonstrably never made.” That the world’s
largest search engine targeted conservative sites such as The Federalist—and
fraudulently so, as David Harsanyi established—and no liberal Web sites isn’t
likely happenstance. Discovery will tell that and maybe much more—that is, if
Damore’s lawyers succeeded in sidestepping the secrecy of arbitration.
Margot
Cleveland is a senior contributor to The Federalist. Cleveland is a lawyer and
a graduate of the Notre Dame Law School as well as a former full-time faculty
member and current adjunct professor for the college of business at the
University of Notre Dame. Email her: MargotCleveland@nd.edu.